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Full text of "North Carolina Register v.7 no. 6 (6/15/1992)"

i^P^o/ iHi-^j ./K^l /^^n 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



TITU 

itiomI 



EXECUTIVE ORDERS 

IN ADDITION 

Final Decision Letter 
Tax Review Board 

PROPOSED RULES 

Environment, Health, and Natural Resources 

Housing Finance Agency 

Human Resources 

Justice 

Professional Engineers and Land Surveyors 

LIST OF RULES CODIFIED 

RRC OBJECTIONS 

RECEIVED 
RULES INVALIDATED BY JUDICIAL DECISION 

J UN 16 1992 



CONTESTED CASE DECISIONS 

ISSUE DATE: June 15, 1992 
Volume 7 • Issue 6 • Pages 491-625 



LAW LIBRARY 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVf (>np^ 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the stamtory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is fUed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn b>' the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may is 
temporary rules. Within 24 hours of submission to OAH 
Codifier of Rules must review the agency's written statemen 
findings of need for the temporary rule pursuant to the provision 
G.S. 150B-21.1. If the Codifier determines that the fmdings n 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC 
the Codifier determines that the fmdings do not meet the crit{ 
the rule is returned to the agency. The agency may supplemen 
findings and resubmit the temporary rule for an additional rev 
or the agency may respond that it will remain with its ini 
position. The Codifier, thereafter, will enter the rule into 
NCAC. A temporary rule becomes effective either when 
Codifier of Rules enters the rule in the Code or on the si 
business day after the agency resubmits the rule without chai 
The temporary' rule is in effect for the period specified in the ruL 
180 days, whichever is less. An agency adopting a temporary 
must begin rule-making procedures on the permanent rule at 
same time the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE COD 



The North Carolina Administrative Code (NCAC) 
compilation and index of the administrative rules of 25 
agencies and 38 occupational licensing boards. The NC 
comprises approximately 15,000 letter size, single spaced page 
material of which approximately 35% of is changed annua 
Compilation and publication of the NCAC is mandated by ( 
150B-2L18. 

The Code is divided into Titles and Chapters. Each state age 
is assigned a separate title which is further broken down 
chapters. Title 21 is designated for occupational licensing board 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cosi 
two dollars and 50 cents (S2.50) for 10 pages or 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling 
excess of 15,000 pages. It is supplemented mont 
with replacement pages. A one year subscription to 
full publication including supplements can 
purchased for seven hundred and fifty doll 
(S750.00). Individual volumes may also be purcha 
with supplement service. Renewal subscriptions 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC shoulc 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, 
number and date. 1:1 NCR 101-201, April 1, 1986 refer 

Volume 1, Issue 1, pages 101 through 201 of ihe. North Carol 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raici^h, yC 27611-7447 

(9/9) 733 - 2678 



ISSUE CONTENTS 



I. EXECUTFV E ORDERS 

Executive Orders 166-167 491 

n. rV ADDITION 

Final Decision Letter 493 

Tax Review Board 494 



III. PROPOSED RLLES 

Environment, Health, and 
Natural Resources 

Environmental Management.... 500 
Governor's Waste 

Management Board 564 

Marine Fisheries 530 

Vital Records 565 

Wildlife Resources 

Commission 551 

Human Resources 

Facility Services 496 

Medical Assistance 496 

Independent Agencies 

Housing Finance Agency 576 

Justice 
State Bureau of Investigation 

DCI 499 

Licensing Board 
Professional Engineers and 
L>and Sur\eyors 566 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



l\'. LIST OF RULES CODIFIED .584 



V. RRC OBJECTIONS 592 

VI. RULES INTALIDATED BY 

JUDICIAL DECISION 596 

VII. CONTESTED CASE 
DECISIONS 

Index to AIJ Decisions 597 

Text of Selected Decisions 610 

VIII. CUMULATFV E INDEX 624 



NORTH CAROLINA REGISTER 

Publication Scfiedule 

(May 1992 - December 1993) 



Issue Last Day Last Day Earliest Earliest Last Day * 

Date for for Date for Date for to Earliest 

Filing Electronic Public Adoption Submit Effective 

Filing Hearing by to Date 



Agency RRC 



05,01/92 04,10,92 04,'17/92 05/16/92 05,31/92 06,20,-92 08/03/92 

05:15/92 04 2492 05/0192 05/30/92 06,-14/92 06 20 92 08/03/92 

06 0192 05/11,92 05/18,92 06/16,92 07,01/92 07 20 92 09 01/92 

06 15 92 05 22 92 06 01,92 06/30-92 07/15/92 07 20 92 09 01'92 

07,01/92 06/10/92 06,17/92 07,-16 92 07/31/92 08,20/92 10 01,92 

07.15.92 06,24 92 07,0192 07,30,92 08,14/92 08,20 92 1001/92 
08/03/92 07 13,92 07/2092 08/18/92 09/02/92 09/20 92 ll/02,'92 

08 14 92 07 24 92 07/31,92 08/29/92 09 13 92 09 20,92 11,02,''92 

09 0192 08 11/92 08/18,92 09/16-92 10 0192 10 20 92 12 01,/92 

09 15,92 08 25 92 09,0192 09/3092 10 15 92 10 20 92 12 01/92 
10,01/92 09 10 92 09,17,92 10/16 92 10 31,92 1120 92 0104 93 
10/15/92 09,2492 10/01/92 1030,92 11 1492 112092 01 04,93 
11/02/92 10 1292 10 19/92 11/17 92 12/02 92 12, 20 92 02/01/93 
11/16 92 10 23 92 10 30 92 12,01/92 12,16 92 12 20 92 02 01/93 
12 0192 1106 92 1113 92 12/16 92 12 3192 0120 93 03 01/93 
12/15/92 1124 92 12,01,92 12/30 92 0114 93 0120/93 03/01/93 
0104/93 12 0992 12/16/92 0119 93 02 03 93 0220/93 04 01/93 
01/15 93 12 22 92 12/3192 01/3093 02 14 93 02 20 93 04 0193 
02,0193 0108 93 0115/93 02/1693 03 03 93 03 20 93 05 03 93 

02 15/93 0125 93 020193 03 02/93 03,17 93 03 20 93 05-03/93 

03 01/93 02 08 93 0215,93 03/16-93 03 3193 04 20/93 06 01/93 
03 15 93 02 22 93 03,01,93 03/30 93 04 14 93 04 20 93 06 01/93 
040193 03 1193 03/18,93 04 16 93 05 0193 05,20 93 07 01/93 
04,15-93 03 24 93 03'31/93 04/30,93 05 15 93 05 20,93 07 01/93 
05 03 93 04 12 93 0419 93 05i8 93 06 02 93 06 20 93 08 02/93 

05 14 93 04 23 93 04,30,93 05/29 93 06 13 93 06 20 93 08 02/93 

06 0193 05 10 93 05/17,93 06/16 93 07 0193 07,20,93 09 0193 
0615/93 05 24 93 06/01/93 06/30 93 07 15/93 07,20,93 09,01/93 
07/01/93 06/10,93 06/17/93 07/16/93 07/31/93 08/20/93 10/01/93 

07 15 93 06 23 93 06-30 93 07/30 93 081493 08 20 93 10 01/93 

08 02 93 07 12 93 07 19,93 08/17 93 09 0193 09 20,93 11,01/93 
08 16,93 07 26,93 08,02,93 08,-31/93 09 15 93 09 20 93 1101/93 
090193 08,1193 08/18,93 09/1693 10 0193 10 20 93 12 0193 
09/1593 08/24/93 08/31,93 09 30 93 10,15 93 10 20 93 12 0193 

10 0193 09 10 93 091793 10/16 93 10 3193 1120 93 0104 94 
10/15,93 09 24 93 10 01/93 10/30 93 1114 93 1120 93 0104 94 
11,01/93 10 1193 10/18 93 11'I6'93 12 0193 12 20 93 02 01/94 
11/15,93 10 22 93 10,29,93 11/30 93 12 15 93 12 20 93 02 0194 

12.01.93 1105/93 11/15,93 12/16 93 12 3193 0120,94 03 0194 
12 15,93 1124 93 12 01/93 12,30 93 0114 94 0120 94 03 0194 



* The "Earliest Effective Date" is computed assuming that the agency fallows 
the publication schedule above, that the Rules Re\ie^v Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delr\-ers 
the rule to the Codifier of Rules fa-e (5) business days before the 1st business 
day of the next calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 166 

AMENDMENT TO EXECUTIVE ORDER 

NUMBER 119 

By the authority vested in me as Governor by 
the Constitution and laws of North Carolina, IT 
IS ORDERED: 

Executive Order Number 119 is hereby 
amended to reorganize the North Carolina 
Quality Leadership Awards Council as follows; 

Section 1. Establishment. 



The North Carolina Quahty Leadership Awards 
Council is hereby established. 1 he Council shall 
have the following subordinate committees: 

A. the Examination Board; 

B. the Recognition Committee; and 

C. such other committees as the Council shall 

create. 

Section 2. Membership. 

The Council shall consist of not more than 
thirty (30) members, including: 

A. the Secretary of Economic and Commu- 
nity Development; 

B. the President of the University of North 
Carolina System; 

C. the President of the Community College 
System; 

D. the Science Advisor to the Governor; 

E. a member recommended by the Lieutenant 

Governor; 

F. a member recommended by the Speaker 
of the House; 

G. the President of North Carolina Citizens 
for Business and Industry; 

H. the President and Chairman of the Board 
of the North Carolina Quahty Leadership 
Foundation; 

L four industrial representatives appointed by 
the Governor; and 

J. no more than twelve (12) ranking officials 
of Award recipient organizations, serving 
three year terms starting in the year sub- 
sequent to wirming the Award. 

Section 7. This Order shall become effective 
immediately and shall not expire unless termi- 
nated by further Executive Order. 

Done in Raleigh, this the 15th dav of May, 
1992. 



EXECUTIVE ORDER NUMBER 167 

AMENDING EXECUTIVE ORDER NUMBER 152 

AND ESTABLISHING THE PERSIAN GULF 

WAR MEMORIAL ADVISORY COMMITTEE 

By the authority vested in me as Govemor by 
the Constitution and laws of North Carolina, IT 
IS ORDERED: 

Executive Order Number 152 is hereby 
amended as follows: 

PARTI 

PERSIAN GULF WAR MEMORIAL 

COMMISSION 

Section 1. ESTABLISHMENT 

TFiere is hereby estabUshed the Persian Gulf 
War Memorial Commission. It shall be com- 
prised of the following: 

1. Two members of families who lost relatives 

in the Persian Gulf to be appointed by the 
Govemor. 

2. One member from the North Carolina 
Veterans' Council to be elected by the 
Council. 

3. One member from the North Carolina 
Veterans' Affairs Commission to be 
elected by the Commission. 

4. The Adjutant General of the North 
Carolina National Guard. 

5. I he Senior Commander of the United 
States Army Reserve from North 
Carolina, deployed to the Persian Gulf. 

6. The Lieutenant Govemor of North 
Carohna. 

7. The Secretary of the North Carohna De- 

partment of Administration. 

8. 1 he Secretary of the North Carolina De- 
partment of Crime Control and Public 
Safety. 

9. Not more than five at-large members. 

From among the membership the Govemor 
shall appoint a chairperson. The Commission 
shall meet at the caU of the chairperson. 

Section 2. PURPOSE 

ITie purpose of the Commission is to select a 
site for construction of a Persian Gulf War Me- 
morial, to select a design for the Memorial, to 
develop plans for funding, and to select a con- 
struction firm to construct the Memorial. To 
this end, the Commission shall estabhsh itself as 
a nonprofit, Chapter 501c(3) corporation for the 
purpose of receipt and expenditure of donated 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



491 



EXECUTIVE ORDERS 



funds. The chairperson periodically shall advise 
the Governor as to the progress of the Commis- 
sion. 

PART 11 

PERSIAN Gl LF WAR MEMORIAL AD\ ISORY 

COMMITTEE 

Section 1. ESTABLISHMENT 

There is hereby established the Persian Gulf 
War Memorial Advisory Committee. It shall be 

comprised of the foUowing: 

1. The base commanders of (a) Fort Bragg, 

(b) Camp Lejeune, (c) United States 
Marine Corps Air Station at Cherry 
Point, (d) Seymour Johnson Air Force 
Base, (e) Pope Air Force Base, (f) the 
Coast Guard Station at Fort .Macon, (g) 
New River /Vir Station, and (h) Elizabeth 
City Coast Guard Air Station, or their 
designees. 

2. The Director of the United States Depart- 

ment of Veterans' /Vffairs Regional Office. 

Section 2. PURPOSE 



The purpose of the Advisory Committee shall 
be to assist the Persian Gulf War Memorial 
Commission in its selection of both a site for 
construction of a Persian Gulf War Memorial 
and a design for the Memorial. The Advisory 
Committee shall meet with the Commission at 
the call of the Commission chairperson, but shall 
have no vote in its fmal decisions nor role in any 
fund raising activities. 

PART III 
ADMINISTRATION 



Administrative support for both the Commis 
sion and the Advisory Committee shall be pro- 
vided by the Department of .Administration and 
the Department of Crime Control and Public 
Safety. There shall be no per diem paid to 
members of either the Commission or the Advi- 
sory Committee; however, necessary travel and 
subsistence allowance may be paid in accordance 
with N.C.G.S. 138-5, 138-6, and 120-3.1. 

PART IV 
EFFECTIVE DATE 

This Order shall become effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 26th day of May, 1992. 



492 



7:6 iWRTH CAROLINA REGISTER June 15, 1992 



IN ADDITION 



[G.S. I20-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United States in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the North Carolina 
Register. / 



U.S. Department of Justice 
Civil Rights Division 

JRD:MAP:NT;gmh 

DJ 166-012-3 Voting Section 

92-1356 P.O. Box 66128 

Washington, D.C. 20035-6128 

May 15, 1992 

David A. Holec, Esq. 

City Attorney 

P.O. Box 1388 

Lumberton, North Carolina 28359-1388 

Dear Mr. Holec: 

This refers to the annexation [Ordinance No. 1324 (1992)] to the City of Lumberton in Robeson 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on March 19, 1992. 

The Attomey General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attomey General to object does not bar sub- 
sequent htigation to enjoin the enforcement of the change. See the Procedures for the Administration 
of Section 5(28 C.F.R. 51.41). 

Sincerely, 



John R. Dunne 

Assistant Attomey General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



7:6 NORTH CAROLINA REGISTER June 15, 1992 493 



ORDERS OF THE TAX REVIEW BOARD 



[This Section contains ORDERS of the TAX REVIEW BOARD issued under G.S. 105-241.2.] 



STATE OF NORTH CAROLINA 



COUNTY OF WAKE 



BEFORE THE TAX REVIEW BOARD 



In the matter of: 
The Proposed Assessments of 
Individual Income Tax by the 
SecretaxN" of Revenue against 
Thomas M. Roval. 



ADMINISTRATIVE 
DECISION NUMBER: 266 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 20 March 1992, upon the petition of 
Thomas M. Royal for review of a Final Decision of the Deputy Secretary of Revenue entered 31 October 
1990 sustaining proposed indi\'idual income tax assessments and denving requests for refund of taxes 
paid for the tax years 1985, 1986, and 1987. 

AND IT APPEARING TO THE BOARD that the fmdmgs of fact made by the Deputy Secretary 
of Revenue were fuUy supported by competent e\'idence of record, that the conclusions of law made 
by the Deputy Secretary' were fuUy supported by the fmdings of fact, and that the decision by the 
Deputy Secretary' was fully supported by the conclusions of law; 

IT IS THEREFORE ORDERED that the Fmal Decision of the Deputy Secretary of Revenue is 
confumed in every respect. 



Entered this the 22nd day of May, 1992. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



William W. Redman, Jr. 
Chairman, Utilities Commission 



Jeff D. Batts 



494 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



ORDERS OF THE TAX REVIEW BOARD 



STATE OF NORTH CAROLINA 



BEFORE THE TAX REVIEW BOARD 



COUNTY OF WAKE 



In the matter of: ) 

The Proposed Assessment of ) 

Additional Inheritance tax due ) 

by the Estate of Austin D. McGuire ) 

by Secretary of Revenue of North ) 

Carolina against Norman L. Nifong, ) 

Administrator, CTA. ) 



ADMINISTRATIVE 
DECISION NUMBER: 



267 



THIS MATTER was heard before the undersigned duly appointed and acting members of the Tax 
Review Board at its regular meeting in the City of Raleigh on 20 March 1992, upon the petition of 
Norman L. Nifong, Administrator, CTA, for review of a Final Decision of the Deputy Secretary of Revenue 
entered 17 April 1989 sustaining a proposed assessment of additional inheritance tax due by the Estate 
of Austin D. McGuire against Norman L. Nifong, Administrator, CTA, together with interest as allowed 
by law and upon the Petitioner's Motion For Leave to Present Additional Evidence fded 6 March 1992; 

AND IT APPEARING TO THE BOARD that the fmdmgs of fact made by the Deputy Secretary 
of Revenue were fully supported by competent evidence of record, that the conclusions of law made 
by the Deputy Secretary were fully supported by the fmdings of fact, and that the decision by the 
Deputy Secretary' was fully supported by the conclusions of law; 

AND IT FURTHER APPEARING TO THE BOARD that the evidence which the Petitioner 
sought leave to present in its Motion of 6 March 1992 would have no impact on the fmdings or con- 
clusions of the Deputy Secretary; 

IT IS THEREFORE ORDERED that the Petitioner's Motion is DENIED and the Final Deci- 
sion of the Deputy Secretary of Revenue is confirmed in every respect. 



Entered this the 22nd day of May, 1992. 



TAX REVIEW BOARD 



Harlan E. Boyles, 
State Treasurer 



Chairman 



WiUiam W. Redman, Jr. 
Chairman, Utilities Commission 



Jeff D. Batts 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



495 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

1\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the Di\ision of Facility Services 
(Department of Human Resources) intends to 
amend rule cited as 10 NCAC 3R .1003. 

1 he proposed effective date of this action is Oc- 
tober I, 1992. 

1 he public hearing will be conducted at 2:00 
p.m. on July 21 , 1992 at the Council Building, 
Room 201, 701 Barbour Drne. Raleigh, NC 
27603. 

Jxeason for Proposed Action: .Agency is initiat- 
ing rule-making proceedings as the result of the 
rule-making petition submitted by Bio Medical 
Applications of North Carolina, Inc. (BMAJ. 

S^omment Procedures: Written comments 
should be submitted to Jackie Sheppard. 701 
Barbour Drive, Raleigh. North Carolina 
27603-2008 by July 16, 1992. Oral comments 
may be given at the public hearing. Telephone 
(919) 733-2342. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGLLATIONS 

SECTION .1000 - SPECIAL CRITERIA AND 
STANDARDS: IN GENERAL 

.1003 STATE MEDICAL FACILITIES PLAN 

(a) The North Carolina State Medical Facilities 
Plan contains the following information: 

(1) inventor\' of certain categories of inpatient 
and outpatient health care facilities, in- 
cluding number of beds and utilization of 
beds; 

(2) type of services provided by each category 
of health care facihty; 

(3) projections of need for acute care hospitals 
(including rehabilitation services), long- 
term care facilities (including nursing 
homes, home health agencies, and hospice 
inpatient facilities), mental health facUities 
and end stage renal dialysis services for 
various geographical areas of the state; 

(4) statement of policies related to acute care 
facilities, rehabilitation services, long-term 
care, psychiatric facilities, chemical de- 
pendency facihties, and facilities for inter- 
mediate care for the mentally retarded, 



which are used with other criteria con- 
tained in this Subchapter and in G.S. 
13 IE- 183 and need projections to deter- 
mine whether applications proposing ad- 
ditional beds and services of these types 
may be approved under the certificate of 
need program; and 

the certificate of need review schedule and 
description of review categories. 
The annually published State Medical Fa- 
cilities Plan approved by the Governor, and any 
duly adopted amendments or additions thereto, 
is hereby adopted by reference pursuant to G.S. 
1 508- 14(c) as a rule for the calendar year during 
which it is in effect, provided, however, that 
Chapter jO of the 1992 State Medical Facilities 
Plan relating to end stage renal disease 



(5) 
(b) 



("ESRD") facilities and services is not adopted 



by reference and is not the applicable plan for the 



review of certificate of need applications for 
ESRD facilities and services under G.S. 
13 IE- 183(a)(1). Rather, the need methodology 



for ESRD facilities and services in Chapter 10 of 
the 1991 State .Vledical Facilities Plan is hereby 
readopted by reference pursuant to G.S. 
150B-14(c) as a rule for calendar year 1992, and 
is the apphcable plan for review of certificate of 



need applications for ESRD facilities and services 
under G.S. 131E-183(a)( 1). 

(c) This plan may be purchased from the Di- 
vision of Facility Services, 701 Barbour Drive, 
Raleigh, North Carolina. This plan is also 
available for inspection at the Division of Facility 
Services. 

Statutory Authority G.S. 131E-176(25); 
131E-177(I): 131E-I83(1); 42 U.S.C. 300K-2. 

****************** 



ly otice is hereby given in accordance with G.S. 
I50B-21.2 that the Department of Human 
Resources Division of Medical Assistance intends 
to amend rule(s) cited as 10 NCAC 26H .0204 
and .0206. 

1 he proposed effective date of this action is De- 
cember 1, 1992. 

1 he public hearing will be conducted at 1:30 
p.m. on September 16, 1992 at the North Carolina 
Dix'ision of .Medical Assistance. 1983 L'mstead 
Drive. Room 132. Raleigh. N.C. 27603. 

iKeason for Proposed .Action: The dispropor- 
tionate share will be continued to include the hos- 



496 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



pitals with the largest numbers of Medicaid 
patients. 

y^omment Procedures: Written comments con- 
cerning these amendments must be submitted by 
September 16, 1992, to: Division of Medical As- 
sistance, J 985 Umstead Drive, Raleigh, North 
Carolina 27603, ATTN.: Bill Hot tel, A PA Coor- 
dinator. Oral comments may be presented at the 
hearing. In addition, a fiscal impact statement is 
available upon written request from the same ad- 
dress. 

Ejditor's Note: These Rules have been filed as 
temporary amendments effective on June 1 , 1992 
for a period of 180 days to expire on November 
30, J 992. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REI\IBLRSE\IENT PLANS 

SECTION .0200 - HOSPITAL INPATIENT 
REIMBLRSEMENT PLAN 

.0204 ADMINISTRATIVE RECONSIDERATION 
REVIEWS 

(a) Reconsideration reviews of rate determi- 
nations will be processed in accordance with the 
provisions of 10 NCAC 26K. Requests for re- 
consideration reviews must be submitted to the 
Division of Medical Assistance within 60 days 
after rate notification, unless unexpected condi- 
tions causing intense financial hardship arise, in 
which case a reconsideration review may be con- 
sidered at any time. 

(b) Operating rate reconsideration reviews are 
considered only on the basis of the actual addi- 
tional cost of essential new services or patient 
mix changes incurred since the base year. 

(c) Capital rate reconsideration reviews are 
considered only for the additional cost of new 
construction, renovations and equipment, con- 
sistent with the Certificate of Need approval if 
required. 

(d) A hospital's adjusted rate for one or more 
of the factors cited in the Paragraphs (a) - (c) of 
this Rule cannot exceed a rate limit computed 
by applying the methods described in Rule .0202 
(b) and (c) of this Subchapter to the hospital's 
allowable Medicaid cost in the most recent an- 
nual cost ref)ort available. 

(e) Hospitals that serve a disproportionate 
share of low-income patients are eligible to re- 
ceive rate adjustments. The cost report data and 
fmancial information that is required in order to 
qualify as a disproportionate share hospital ef- 
fective April 1, 1991 is based on the fiscal year 
ending in 1989 for each hospital, as submitted to 



the Division of Medical Assistance on or before 
April 1, 1991. The cost report data and financial 
information to qualify as a disproportionate 
share hospital effective July 1, 1991 is based on 
the fiscal year ending in 1990 for each hospital, 
as submitted to the Division of Medical Assist- 
ance on or before September 1, 1991. In subse- 
quent years, qualifications effective July 1, of any 
particular year are based on each hospital's fiscal 
year ending in the preceding calendar year. The 
patient days, costs, revenues, or charges related 
to nursing facility services, swing-bed services, 
home health services, outpatient services, or any 
other service that is not a hospital inpatient ser- 
vice, cannot be used to quaUfy for dispropor- 
tionate share status. A hospital is deemed to be 
a disproportionate share hospital if: 

(1) The hospital has at least 2 obstetricians 
with staff privileges at the hospital who 
have agreed to provide obstetric services 
to individuals eligible for Medicaid. In 
the case of a hospital located in a rural 
area, the term obstetrician includes any 
physician with staff privileges at the hos- 
pital to perform non-emergency obstetric 
procedures. This requirement does not 
apply to a hospital which did not offer 
non-emergency obstetric services as of 
December 21, 1987 or to a hospital that 
predominantly serves individuals under 18 
years of age; and 

(2) The hospital's Medicaid inpatient utiliza- 
tion rate, defmed as the percentage result- 
ing from dividing Medicaid patient days 
by total patient days, is at least one 
standard deviation above the mean 
Medicaid inpatient utilization rate for all 
hospitals that receive Medicaid payments 
in the state; or 

(3) The hospital's low-income utilization rate 
exceeds 25 percent. The low-income 
utilization rate is the sum of 

(A) the ratio of the sum of Medicaid inpa- 
tient revenues plus cash subsidies received 
from the State and local governments, di- 
vided by the hospital's total patient re- 
venues; and 

(B) the ratio of the hospital's gross inpatient 
charges for charity care less the cash sub- 
sidies for inpatient care received from the 
State and local governments, divided by 
the hospital's total inpatient charges; or 

(4) The sum of the hospital's Medicaid re- 
venues, bad debts allowance net of recov- 
eries, and charity care exceeds 20 percent 
of gross patient revenues; or 

(5) The hospital, in a ranking of hospitals in 
the State, from most to least in number 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



497 



PROPOSED RULES 



of Medicaid patient days provided, is 
among the top group that accounts for 50 
percent of the total Medicaid patient days 
provided by all hospitals in the State, 

(f) The rate adjustment for a disproportionate 
share hospital is 2.5 percent plus one-fourth of 
one percent for each percentage point that a 
hospital's Medicaid inpatient utilization rate ex- 
ceeds one standard deviation of the mean 
Medicaid inpatient utilization rate in the State. 
The rate adjustment is applied to a hospital's 
payment rate exclusive of any previous dis- 
proportionate share adjustments. 

(g) For hospitals ehgible under Paragraph (e) 
of this Rule, an additional payment adjustment 
may be made to each hospital for services pro- 
vided in the months of April, May, and June, 
1991 equal to the product of the ratio of each 
hospital's total Medicaid inpatient days divided 
by the total Medicaid inpatient days provided by 
all disproportionate share hospitals in the state 
during their fiscal years ending in 1989 multiplied 
by an amount of funds to be determined by the 
Director of the Division of .Medical Assistance, 
but not to exceed one hundred fortv million dol- 
lars ($140,000,000). Each hospitals payment 
adjustment wiU be paid retrospectively in up to 
three mstallments. .An additional payment ad- 
justment by this methodology may be made for 
services provided in the months of July, August, 
September, October, November and December, 
1991 based on the .Medicaid and total inpatient 
days as filed in the hospital cost reports for fiscal 
years ending in 1990. The amount of funds to 
be determined bv the Director shall not exceed 
one hundred sixty million dollars ($160,000,000). 

(h) For hospitals ehgible under Paragraph (e) 
of this Rule, an additional payment adjustment 
ma\ be made after the clfecti\e date of this Rule 
to each hospital for services provided in the 
months of Januar\. Febru^irw March. Apnl. Ma\ 
and June 1992 based on the .Medicaid and total 
mpatient da\'s as tiled in hospital cost reports for 
fiscal \ears endmg in 19^0, by use of the meth- 
odolog\" described in Paragraph (g) of this Rule. 
J he amount of funds to be determined by the 
Director shall not exceed one hundred sixty 
million dollars ($160,000.000). Fach hospital 
payment adjustment will be paid retrospecti\elv 
in u£ to three mstallments. An additional pay- 
ment adjustment bv this mcthodoiog\' \<.ill be 
made for serMces provided in the months of Juh'. 
■August, and September 1992 based on the 
■Medicaid and total mpatient days as lUed m hos- 
pital cost reports for fiscal years ending in 1991. 
The amount of funds to be dctennined by the 
Director shall not exceed ei.ghtv million dollars 
($80,000.000). 



(i) (fe) Except as otherwise specified in this Rule, 
rate adjustments are considered based on the 
most recent annual cost report, audited fmancial 
statements when necessar>' and other required 
information as submitted by a hospital provider. 
iAn adjustment cannot be made if the necessary 
information is not submitted or if the informa- 
tion is incomplete or incorrect. A rate adjust- 
ment can be appUed retroactively to the most 
recent July 1 effective date, but cannot be appUed 
to previous fiscal years. 

(i) (i^ For hospitals eligible under Paragraph (e), 
a payment adjustment is available for services 
involving exceptionally high costs or excep- 
tionally long lengths of stay for patients under six 
years of age. A payment adjustment is available 
for all the other hospitals for such ser\'ices pro- 
\ided to patients under one year of age. A five 
percent increase above the normal payment 
amount (as described in Paragraph (f) of this 
Rule) will be provided for the inpatient claims 
with billed charges in excess of fifty-five thousand 
doUars ($55,000) or with stays in excess of 65 
days. The fifty-five thousand doUar ($55,000) 
threshold will be increased annually by the in- 
flation factor described under Paragraph (c) of 
this Rule of the Rate Setting Methods section of 
this plan. This provision is effective for dates of 
service beginning July 1, 1991. 

(k) The disproportionate share payments and 
payments adjustments described in Paragraphs 
ii), (g), (hj. and Ql under jO NCAC 26H .0204 
are made in addition to the payments described 
in Paragraphs (ai - (]} under j_0 NC-\C 26H 
.0202. 

Auihoriiy G.S. 108A-25(b); I08A-54: IOSA-55; 
I50B-II: S.L. I9S5, c. 479, s. 86: 42 C.F.R. 447, 
Subpart C. 

.0206 P.WMENT .\SSl R.\^\CE 

(a) Tlie state will pay each hospital the amount 
determined for inpatient services provided by the 
hospital according to the standards and methods 
set forth in this Section. In all circumstances 
involving third party payment, Medicaid will be 
the payor of last resort. 

(b) If contributions are made pursuant to 
General Statute 143-23.2 during calendar year 
1991, the Department has determined that it will 
use them as follows: 

( 1 ) the Department will present the contrib- 
uted funds to the federal government to 
be matched pursuant to federal fmancial 
participation rules. The total of the con- 
tnbuted and matched funds hereinafter 
will be referred to as the 'Tunds" to be 



498 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



disbursed in the order set forth in this 
Rule. 

(2) the contributed funds will provide the total 
non-federal share of Medicaid expendi- 
tures made with the Funds. 

(3) up to forty million doUars ($40,000,000) 
of the Funds will be used to fund elimi- 
nation of the target day provision (as de- 
scnbed in 10 NCAC 26H .0202(h)] for 
fiscal years 1990-91 and 1991-92, and to 
further other State Medicaid purposes for 
those fiscal years. 

(4) any remaining Funds, not to exceed one 
hundred forty million doUars 
($140,000,000), wiU be used to make an 
additional payment adjustment to dis- 
proportionate share hospitals for services 
provided in April, .May and June, 1991, 
as provided in Rule .0204(g) of this Sec- 
tion. 

(5) any remaining Funds, not to exceed 
twenty-two million five hundred thousand 
dollars ($22,500,000), will be used to fund 
Medicaid provider claim payments in 
November or December 1991. 

(6) any remaining Funds, not to exceed one 
hundred sixty rmlhon dollars 
($160,000,000), will be used to make an 
additional payment adjustment to dis- 
proportionate share hospitals for ser%'ices 
provided in July, August, September, Oc- 
tober, November and December, 1991, as 
provided in Rule .0204(g). 

(c) If contributions are made pursuant to 
General Statute 143-23.2 during calendar vear 
1992. the Department has detcnnined that it wiU 
use them as follows: 

(1) the contnbuted funds will provide the total 
non-federal share of .Medicaid expendi- 
tures for disproportionate share hospital 
pasments made pursuant to J_0 NCAC 
26H .0204(h) and the state portion of the 
total non-federal share for all other 
Medicaid expenditures attributable to 
such contributions. 

(2) 40.193 percent of the contributed funds 
will be presented to the federal govern- 
ment to be matched pursuant to federal 
financial participation rules and will be 
used to support .Medicaid program ex- 
penditures in SF"^' 91-92 and or SFY 
92-93 and an amount not to exceed tive 
hundred thousand dollars ($500.000) to 
support Medicaid administrative expendi- 
tures in SFY 92-93. 

(3) the Department wiU present the remaining 
contributed funds upon receipt to the 
federal government to be matched pursu- 



ant to federal financial participation rules. 
The total of the contnbuted and matched 
funds hereinafter will be referred to as the 
"Funds" to be disbursed in the order set 
forth m this Rule. 



(4) the Funds, not to exceed one hundred 
sixty million dollars ($160,000,000) will 
first be used to make an additional pay- 
ment adjustment to disproportionate 
share hospitals for services provided dur- 
ing JanuaP)' through June, 1992, as pro- 
vided m 10 NCAC 26H .0204(h). 

(5) the remaimng Funds, not to exceed eighty 
imlhon dollars ($80.000.000), will next be 
used to make an additional pavment ad- 
justment to disproportionate share hospi- 
tals for services pro\idcd during July 
through September, 1992, as provided in 
10 NCAC 26H .0204(h). 

(6) any remaimng Funds, wiU he used to 
support Medicaid program expenditures 
m SFY Ql-92 and or SFY 92-93. 

(d) fe) Contributed funds shaU be earmarked 
and maintained in a segregated account in ac- 
cordance with General Statute 143-23, 2(b). 

Authority G.S. I08A-25(b): IOSA-54; 108A-55; 
S.L. I9S5, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

TITLE 12 - DEPART.MENT OF JUSTICE 

Jyotice is hereby given in accordance with G.S. 
150B-2I.2 that the N.C. Department of Justice, 
State Bureau of Investigation (DCI ) intends to 
amend rule cited as 12 NCAC 4F .0601 and adopt 
rules cited as 12 NCAC 4F .0602 - .0604, with 
changes from the proposed text noticed in the 
Register. Volume 7, Issue 3. pages JSS - IS9. 

1 he proposed effective date of this action is 
September f 1992. 

(^ omment Procedures: Interested persons may 
present their views in written form from June 15, 
1992 to July 15, 1992. Such written comments 
must be delivered or mailed to the Division of 
Criminal Information, 407 North Blount Street, 
Raleigh. North Carolina 27601. 

Cn.\PTER 4 - DIVISION OF CRIMINAL 
INFORM.UION 

SLBCHAPTER 4F - SECLRITY AND PRIVACY 

SECTION .0600 - ALTOMATED FINGERPRINT 
IDENTIFICATION SYSTEM 



7:6 NORTH CAROLINA REGISTER June 15. 1992 



499 



PROPOSED RULES 



.0601 ALTOMATED FINGERPRINT 
IDENTIFICATION SYSTEM 

(a) Agencies which meet the requirements of 
Subchap"tor -* R«;* .43<^ (^ ©f tfe* Chapter 12 
NC AC 4E .020 1(a) have the capabihty to access 
the SB Is Automated Fingerprint Identification 
System for criminal justice purposes. 

(b) Direct access may be obtained by submit- 
ting a letter of request to the SBI Assistant Di- 
rector for DCI. 

fe} ^H» following data vs availablo s^ may be 
used te mako comparir.ons and or obtain CCH 
data: 

{4-f fing e r^irint clasGification; 

f4| fingorprint minutiao; 

f^-)' fingL ' rprint image": . ; aft4 

f4+ f . tato identification number. 
{4^ \\"hL'n tfee litato identification number » 
u i' ed tt* obtain CCIl data. diL . i . emination require 
mentf . outlined m Rule . 1 ) 101 Paragraph ' : . (^ »ft4 
f4+ ei" Ai*. Subchapter mu - jt be lollovrod. 

(c) The acron\m used for the SBI's Automated 
Fingerprmt Identification System shall be the 
Alls. 

Statuton Authority G.S. I5A-502; 114-10; 
1 14- 10. 'l; 114-16. 

.0602 ELIGIBILITY FOR FLLI. OR LIMITED 
ACCESS TO THE AFIS NETWORK 

fa) Agencies which meet the requirements of 
n NCAC 4F .0201(a) shall be ehiable to access 
the AFlS lor criminal justice purposes. 

(b) A request for direct access shall be submit- 
ted in writing U5 the SBI Assistant Director for 
DCI. 

(c) Any request for an AFIS terminal and ac- 
cess must be approved by the SBI D(T .Ads'isoP)' 
Pohcv Board. 

Statutory Authority G.S. 114-/0; 114-10.1. 

.0603 AFIS AGREEMENT 

(a) Fach eligible agency under Rule .0602 of 
this Section requesting an .AFIS temiinal shall 
Slim an .AFIS Agreement ccrtifMng that the 
agency head has read, and understands the re- 
quirements for secunty within DCI, and that the 
agenc\" head will uphold the agreement, and 
abide bv the standards and guidelines outlined in 
the AFIS Agreement. 



(b) A current and signed cop\' of the AFIS 
Agreement for each agency ma\ be re\iewcd at 
407 North Blount Street. Raleigh, North 
Carolina. 

(c) Lpon determination that a violation of the 
AFIS .Agreement has occurred, requirements 



outlined in U NCAC 4G .0201 must be fob 
lowed. 



Statutory Authority 
1 14-10.1; 114-16. 



G.S. 15A-502; 114-10; 



.0604 AVAILABLE D.ATA 

(a) The following data is available and may be 
used to make comparisons and or obtain CCH 
data: 

( 1) fingerprint classification; 

(2) fingerprmt minutiae; 

(3) fmgerpnnt images; and 

(4) state identification number. 

(b) When the state identification number is 
used to obtain CCH data, dissemination require- 
ments outlined m 12 NCAC 4F .0401 (c) and (d) 
must be followed. 



Statutory A uthority 
114-10.1; 114-16. 



G.S. 13A-502; 114-10; 



TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

N.ATl RAL RESOLRCES 

ly otice is hereby given in accordance with G.S. 
1508-21. 2 that EHhR - Environmental Manage- 
ment Commission intends to amend rule(sj cited 
as ISA XCAC 2B .0101, .0/03. .0201 - .0202, 
.0206, .0208. .0211 - .02/2. .0216. 

1 he proposed effective date of this action is No- 
vember 2. 1992. 

1 he public hearing Viill be conducted at 7:00 
p.m. on July 1. 1992 at the Ground Floor Hearing 
Room. Archdale Building, 5/2 North Salisbury 
Street. Raleigh. N.C. 

r\easons for Proposed .4ctions; Every three 
years, the U.S. Ertvironmental Protection Agency 
(EPA) requires that the state review and revise, 
as needed, t/ie surface water quality standards and 
classifications rules which arc designed to protect 
human health and aquatic life. This review proc- 
ess is mandated by the Clean Water Act and is 
termed the Triennial Review. During the current 
Triennial Review cycle, EP.4 is requiring states to 
specifically address three items; 1 1 a definition 
stating that wetlands are waters of the state; 2) 
narrati\'e biological standards; and 3) proce- 
dures to implement tlie state's Antidegfadation 
Policy. Although wetlands are already included, 
in a broad sense, in the statutory definition of 
waters [\C General Statute 143-2/ (6) J. a defi- 
nition of wetlands is specifically included in these 



500 



:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



proposals. The Environmental Management 
Commission already has adopted narrative bi- 
ological standards and procedures to implement 
the Antidegradalion Policy, but some minor clar- 
ifications are being proposed. A summary of the 
proposed amendments is provided in the following 
section. 

Summary of Proposed Rule Amendments: 

15A NCAC 2B .0101(c) and (d) - Add wildlife as use 
to be protected; this use is already included in 
.0211 and .0212. 

ISA NCAC 2B .0101(g) - Remove "significant 
quantities" language; removes burden of proof of 
what's "significant" from DEM. 

ISA NCAC 2B .0103(b) - Update methods citations. 
Cite OEM's Biological Monitoring SOPs. 

ISA NCAC 28 .0201(c) - Delete "or renewal"; re- 
quirements for permit "renewal" covered in boiler 
plate language in permit. 

ISA NCAC 28 .0201(d) - Clarify that industrial 
discharges will be permitted to HQWs with strin- 
gent limits and clarify language for sedimentation 
and erosion control plan requirements in (d)(2); 
staff comments on .0201(c) and (d) are part of 
EPA-required review of Antidegradation imple- 
mentation procedures. 

ISA NCAC 28 .020l(dK2) - Clarify reference to 
state and local erosion and sedimentation control 
plans. 

ISA NCAC 2B .0202 - Delete definition of 
" Bioaccumulative" (definition No. 8). Add defi- 
nitions of " Bioaccumulation Factor" (BAF) and 
"Bioconcentration Factor" (BCF) (definitions 
Nos. 8 and 9) to clarify the use of these tertns in 
Rule .0208. Add definition of "Biological Integ- 
rity" (definition No. 10). Add definition of 
" Wetlands" (definition No. 43). 

ISA NCAC 28 .0206(aK3XA) and (8) - Clarify 
routes of exposure. 

ISA NCAC 28 .0208(aX2) - Clarify that 
Bioaccumulation data can be used where appro- 
priate. 

ISA NCAC 2B .021 l(bKI) and (2) - Clarify that im- 
pacts to water quality which adversely affect Bi- 
ological Integrity are a violation of water quality 
standards; the term "biological integrity" is re- 
ferred to in the statutory definition of "water pol- 



lution"; these changes, along with the proposed 
definition of "biological integrity" clarify that 
causes of "water pollution" which adversely im- 
pact "biological integrity" are violations of water 
quality standards. 

ISA NCAC 28 .0212(bKl) and (2) - Same clarifica- 
tion regarding adverse impacts to "biological in- 
tegrity" as described above for .021 1 (b)( I ) and 
(2). 

ISA NCAC 2B .02I6(cXl) - Clarify reference to 
state and local sedimentation and erosion control 
plans. 

ISA NCAC 2B .0216(cXIKA) and (B) - Clarify lan- 
guage pertaining to the EMC's ability to adopt 
more stringent criteria for stormwater runoff con- 
trols; similar language was adopted in 1990 for 
High Quality Waters based on comments from the 
Rules Review Commission's legal staff who also 
indicated at that time that similar comments 
would be made on the ORW rule at the next op- 
portunity. 

Other changes being proposed are to correct 
typographical errors or to update cross-references 
and citations. THE EN VI RON. MENTAL 

MANAGEMENT COMMISSION (EMC) MAY 
ADOPT REVISIONS TO NORTH 
CAROLINA'S SURFACE WATER QUALITY 
CLASSIFICATIONS AND STANDARDS 
RULES THAT MAY DIFFER FROM THE 
REVISIONS PROPOSED HEREIN, IF THE 
EMC DETERMINES THAT THE FINAL 
ADOPTED RULES ARE A LOGICAL OUT- 
GROWTH OF THE NOTICE. THE PUBLIC 
HEARINGS AND THE HEARING COM- 
MENTS RECEIVED, AND THE CHANGES 
ARE NOT A SIGNIFICANT CHANGE FROM 
WH.4T WAS PROPOSED. 



Co 



.. omment Procedures: Notice is hereby given 
of a public hearing to be held by the North 
Carolina Department of Environment, Health, and 
Natural Resources on behalf of the Environmental 
Management Commission (EMC) concerning 
proposed revisions to the State's surface water 
quality classifications and standards rules. These 
revisions are being proposed in compliance with 
section 303(c) of the Clean Water Act which re- 
quires that states review and revise, as needed, 
their surface water quality classifications and 
standards at least once every three years. All 
persons interested in or potentially affected by this 
matter are invited to attend the public hearings 
being noticed herein. Comments, data, statements 
and other information may be submitted in writing 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



501 



PROPOSED RULES 



prior to, during or within 30 days after the date 
of the last public hearing. Written public com- 
ments will be accepted, therefore, through August 
1 , 1992 inclusive. Comments may also be pre- 
sented orally at the hearings. So that all persons 
desiring to speak may have an opportunity to do 
so. the length of verbal statements may be limited 
at the discretion of the hearing officers. The 
statutory authority for these actions is as follows: 
N.C. General Statutes 143-214./, 1 43-2 1 4.5. 
143-2l5.3(a)( 1 ) and (3). The proposed effective 
date of the final adopted water supply classifica- 
tions and standards rules is November 2, 1992. 
ALL ISTERESTED AND POTENTL4LLY 
AFFECTED PERSONS OR PARTIES ARE 
STRONGLY ENCOURAGED TO READ THIS 
ENTIRE NOTICE INCLUDING THE EXPLA- 
NATION OF NOTICE PROVIDED HEREIN 
AND TO OBTAIN ADDITIONAL INFORMA- 
TION ON THESE PROPOSALS BY WRITING 
OR CALLING: Dr. Gregory Thorpe; Dixision 
of Emirontnental Management; P.O. Bo.x 29535; 
Raleigh, North Carolina 27626-0535; (919) 
733-50S3. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
STANDARDS: MONITORING 

SECTION .0100 - PROCEDl RES FOR 

ASSIGNMENT OF WATER QUALITY 

STANDARDS 

.0101 GENERAL PROCEDURES 

(a) The rules contained in Sections 2B .0100, 
2B .0200 and 2B .0300 of this Subchapter which 
pertain to the series of classifications and water 
quality standards shall be known as the "Classi- 
fications and Water Quality Standards Applicable 
to the Surface Waters of North Carolina." 

(b) The Environmental Management Com- 
mission, prior to classifying and assigning stand- 
ards of water quality to any waters of the state, 
will proceed as follows: 

(1) The Commission, or its designee, will de- 
termine waters to be studied for the pur- 
pose of classification and assignment of 
water quality standards on the basis of 
user requests, petitions, or the identifica- 
tion of existing or attainable water uses, 
as defmed by 44A NCi\C m .0202(16), 
ISA NCAC 2B .0202(19). not presently 
included m the water classification. 

(2) After appropriate studies of the identified 
waters to obtain the data and information 
required for determining the proper clas- 
sification of the waters or segments of 



water are completed, the Commission, or 
its designee, will make a decision on 
whether to initiate proceedings to modify 
the classifications and water quality 
standards of identified waters. In the case 
of the Commission's designee deciding to 
initiate said proceedings, the designee will 
inform the Commission of the decision 
prior to scheduling a public hearing. 

(3) In the case of a petition for classification 
and assignment of water quality standards 
according to the requirements of General 
Statute 150B 16, 150B-20, the Director 
will make a preliminary recommendation 
on the appropriate classifications and wa- 
ter quahty standards of the identified wa- 
ters on the basis of the study findings 
and/or information included in the peti- 
tion supporting the classification and 
standards changes. 

(4) The Commission will make a decision on 
whether to grant or deny a petition in ac- 
cordance with the provisions of General 
Statute 150B 16 150B-20 based on the 
information included m the petition and 
the recommendation of the Director. The 
Commission may deny the petition and 
request that the Division study the ap- 
propriate classifications and water quality 
standards for the petitioned waters in ac- 
cordance with Subparagraph (b)(2) of this 
Rule. 

(5) The Director wdl give due notice of such 
hearing or hearings in accordance with the 
requirements of General Statute 143-214.1 
and G.S. 1508, and will appoint a hearing 
officer(s) in consultation with the chair- 
man of the Commission. 

(6) The hearing officer(s) will, as soon as 
practicable after the completion of the 
hearing, submit a complete report of the 
proceedings of the hearing to the Com- 
mission. The hearing oflicer(s) shall in- 
clude in the report a transcript and/or 
summary of testimony presented at such 
pubhc hearing, relevant exhibits, a sum- 
mary of relevant information from the 
stream studies conducted by the technical 
stalT of the Commission, and fmal rec- 
ommendations as to classification of the 
designated waters and the standards of 
water quahty and best management prac- 
tices which should be applied to the clas- 
sifications recommended. 

(7) The Commission, after due consideration 
of the hearing records and the fmal rec- 
ommendations of the hearing ofticer(s), 
will adopt its fmal action with respect to 



502 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



the assignment of classifications, and any 
applicable standards or best management 
practices applicable to the waters under 
consideration. The Commission will 
publish such action, together with the ef- 
fective date for the application of the pro- 
visions of General Statute 143-215.1 and 
143-215.2, as amended, as a part of the 
Commission's official rules. i» accord 
aeee witb Gen e ral Statut e 150B 59. 
(8) The final action of the Commission with 
respect to the assignment of classification 
with its accompanying standards and best 
management practices shall contain the 
Commission's conclusions relative to the 
various factors given in General Statute 
143-214. 1(d), and shall specifically include 
the class or classes to which such specif- 
ically designated waters in the watershed 
or watersheds shall be assigned on the 
basis of best usage in the interest of the 
public. 
Freshwater Classifications. 
Class C; freshwaters protected for second- 
ary recreation, fishing, aB4 aquatic life in- 
cluding propagation and survival, and 
wildhfe; all freshwaters are classified to 
protect these uses at a minimum; 
Class B; freshwaters protected for primary 
recreation which includes swimming on a 
frequent and/or organized basis and all 
Class C uses; 

Class WS-I; waters protected as water 
suppUes which are in natural and unin- 
habited or predominantly undeveloped 
(not urbanized) watersheds; no point 
source discharges of wastewater are per- 
mitted, except those existing discharges 
qualifying for a General Permit according 
to the requirements of +^A N'CAC 344 
MM \5A. NCAC 2H .0126 specifically 
approved by the Commission at the time 
of classification; and local land manage- 
ment programs to control nonpoint 
source pollution are required; suitable for 
all Class C uses; 

(4) Class WS-II; waters protected as water 
supphes which are in low to moderately 
developed (urbanized) watersheds; dis- 
charges are restricted to domestic 
wastewater (sewage) or industrial non- 
process waters specifically approved by 
the Commission; local land management 
programs to control nonpoint source pol- 
lution are required; suitable for all Class 
C uses; 

(5) Class WS-IIl; water supply segment with 
no categorical restrictions on watershed 



(c) 
(1) 



(2) 



(3) 



development or discharges; suitable for all 
Class C uses; 

(d) Tidal Salt Water Classifications. 

(1) Class SC; saltwaters protected for second- 
ary recreation, fishing, afi4 aquatic life in- 
cluding propagation and survival, and 
wildlife; all saltwaters are classified to 
protect these uses at a minimum; 

(2) Class SB; saltwaters protected for primary 
recreation which includes swimming on a 
frequent and/or organized basis and all 
Class SC uses; 

(3) Class SA; suitable for commercial 
shellfishing and all other tidal saltwater 
uses; 

(e) Supplemental Classifications. 

(1) Trout waters (Tr); freshwaters protected 
for natural trout propagation and survival 
of stocked trout; 

(2) Swamp waters (Sw); waters which have 
low velocities and other natural charac- 
teristics which are different from adjacent 
streams; 

(3) Nutrient Sensitive Waters (NSW); waters 
subject to excessive growths of micro- 
scopic or macroscopic vegetation requir- 
ing limitations on nutrient inputs; 

(4) Outstanding Resource Waters (ORW); 
unique and special waters of exceptional 
state or national recreational or ecological 
significance which require special pro- 
tection to maintain existing uses; 

(5) High Quality Waters (HQW); waters 
which are rated as excellent based on bi- 
ological and physical/chemical character- 
istics through division monitoring or 
special studies, native and special native 
trout waters (and their tributaries) desig- 
nated by the Wildlife Resources Commis- 
sion, primary nursery areas (PNA) 
designated by the Marine Fisheries Com- 
mission and other functional nursery areas 
designated by the Wildlife Resources 
Commission or other appropriate agen- 
cies, critical habitat areas designated by 
the Wildlife Resources Commission or the 
Department of Agriculture, all water sup- 
ply watersheds which are either classified 
as WS-I or WS-II or those for which a 
formal petition for reclassification as WS-I 
or WS-II has been received from the ap- 
propriate local government and accepted 
by the Division of Environmental Man- 
agement and all Class SA waters. 

(f) In determining the best usage of waters and 
assigning classifications of such waters, the 
Commission will consider the criteria specified in 
General Statute 143-214. 1(d) and all existing uses 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



503 



PROPOSED RULES 



as defined by -l^A > . CAC m .0203(16). 15A 
NCAC 2B .0202(19). In deteniiining whether to 
revise a designated best usage for waters through 
a revision to the classifications, the Commission 
will follow the requirements of 40 CFR 
131.1 0(b), (c),(d) and (g) which are adopt e d W 
roforonoo to include further amendmonto m ae- 
cordanc e ^vith G.S. 15QB 1 1(c). hereby incor- 
porated by reference including any subsequent 
amendments and editions. fhis material is 
available for mspection at the Department of 
Environment, Health, and Natural Resources, 
Division of Fuvironmental .Management, 512 
North Sahsbury Street, Raleigh. North Carohna. 
Copies may be obtained from the Supermtendent 
of Documents, U.S. Government Prmtuig Office, 
\\^'ishm.gton, DC. 20402-9325 at a cost of thir- 
teen dollars (S 13.00). 

(g) When revising the classification of waters, 
the Division wdl collect water quality data within 
the watershed for those substances which require 
more stringent control than required by the ex- 
isting classification. However, such sampling 
may be limited to only those parameters which 
are ouopoctod to h% prooont ift L ' ignifioant quanti 
ti<e*T of concern. If the revision to classifications 
invohes the removal of a designated use, the Di- 
vision will conduct a use attainability study as 
required by the provisions of 40 CFR 131.10(i) 
which are adopted by reference te- include further 
amendments m acciordanoo with G.S. 
150B l ' l(o). hereby incorporated bv reference 
including any subsequent amendments and edi- 
tions. This material is available for mspection 
at the Department of Fnvironment. Health, and 
Natural Resources, IJivision of En\ironmental 
.Management, 512 North Sahsbury Street, 
Raleigh. North Carolina. Copies may be ob- 
tained from the Superintendent of Documents, 
U.S. Go\emment Printing Office. Washington. 
DC. 2(1402-9325 at a cost of thirteen dollars 
($13.00). 

Statutory Authority 

143-2I5.3(a)(l). 



G.S. 



143-214.1: 



.0103 .\N.\LVTICAL PROCEDURES 

(a) Chemical Physical Procedures. Tests or 
analylical procedures to determine conformity or 
non-conformity with standards will, insofar as 
practicable and applicable, conform to the 
guidelines by the Environmental Protection 
Agency codified as 40 CFR, Part 136, which are 
adopted fety reference to include further amend 
mentf i m accordance VrtA GtSt 1501^ 1 1(c) ef 
i . uoh other method? , a^ f»*¥ b^ approved by th^ 
Director, hereby incorporated bv reference in- 
cluding any subsequent amendments and editions 



or such other methods as may be approved by 
the Director. This material is available for in- 
spection at the Department of Environment, 
Health, and Natural Resources, Division of En- 
\ironmental .Management, 512 North Salisbury 
Street, Raleigh, North Carolina. Copies may be 
obtained from the Superintendent of Documents, 



U.S. Government Pnnting Office, Washington, 
DC. 20402-9325 at a cost of thirteen doUars 
(S13.00). 

(b) Biological Procedures. Biological tests to 
determine conformity or non-conformity with 
standards will be based on methods pubhshed by 
the U.S. Environmental Protection Agency as 
outlined in ".Methods for Measuring the Acute 
Toxicity of Effluents to Freshwater and Marine 
Organisms, Fourth Edition " (Report >^ 
EPA . 600 1 85 . 013) (1991: Report No. 
EPA 600 4-90 027) or subsequent versions, 
"Short-term Methods for Estimating the Chronic 
Toxicity of FfQuents and Receiving Waters to 
Freshwater Organisms, Second Edition " (Report 
^>;^ EPA 600^1 85 Oil) (1989; Report No. 
F PA; 600 4-89'001) or subsequent versions, and 
"Short-term Methods for Estimating the Chronic 
Toxicity of Effluents and Receiving Waters to 
Marine and Estuarine Organisms" (Report No. 
EPA,600/4-87'028) or subsequent versions, or 
methods published bv the North Carolina De- 
partment of Environment, Health, and Natural 
Resources, as outUned in "Standard Operating 
Procedures: Biological Momtonng" ( 1990: Divi- 
sion of Fn\'ironmental .Management, Water 
Quality Section) or subsequent versions, or such 
other methods as approved by the Director. 

Statutorv Authority G.S. 143-214.1; 

l43-2l5.3(a)(l). 

SECTION .0200 - CI ASSIFIC.\TIONS .AND 

\V.\TER QLALnVSl.\ND.\RDS APPLICABLE 

TO SURFACE WATERS OF NORTH CAROLINA 

.0201 .ANTIDEGRADATION POLICY 

(a) It is the pohcy of the Environmental Man- 
agement Commission to maintain, protect, and 
enhance water quality within the State of North 
Carolina. Pursuant to this pohcy, the require- 
ments of 40 CFR 131.12 are adopted by referenc e 
ift accordance with G e n e ral Statut e 150B 1 1(b). 
hereby incorporated bv reference including any 
subsequent amendments and editions. This ma- 
tenal is a\ailable for inspection at the Depart- 
ment of En\ironment. Health, and Natural 
Resources. Division of Fn\ironmental Manage- 
ment, 512 North Sahsbury Street. Raleigh. North 
Carolina. Copies may be obtained from the Su- 
perintendent of Documents, IS. Ciovemment 



504 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



Prmting Office, Washington, D.C. 20402-9325 at 
a cost of thirteen doUars ($13.00). These re- 
quirements will be implemented in North 
Carolina as set forth in Paragraphs (b), (c) and 
(d) of this Rule. 

(b) Existing uses, as dcfmed by Rulo .0302(16) 
Rule .0202(19) of this Section, and the water 
quality to protect such uses shall be protected by 
properly classifying surface waters and having 
standards sufficient to protect these uses. In 
cases where the Commission or its designee de- 
termines that an existing use is not included in 
the classification of waters, a project which will 
affect these waters will not be permitted unless 
the existing uses are protected. 

(c) The Commission shall consider the present 
and anticipated usage of waters with quality 
higher than the standards, including any uses not 
specified by the assigned classification (such as 
outstanding national resource waters or waters 
of exceptional water quality) and will not allow 
degradation of the quality of waters with quality 
higher than the standards below the water quahty 
necessary to maintain existing and anticipated 
uses of those waters. Waters with quahty higher 
than the standards are defmed by Rulo .0202(39) 
Rule .0202(42) of this Section. The foUowing 
procedures will be implemented in order to meet 
these requirements: 

(1) Each applicant for an NPDES permit or 
NPDES permit expansion ef ronuwal to 
discharge treated waste will document an 
effort to consider non-discharge alterna- 
tives pursuant to 15A NCAC 2H 
.0105(c)(2). 

(2) Public Notices for NPDES permits will 
hst parameters that would be water qual- 
ity limited and state whether or not the 
discharge will use the entire available load 
capacity of the receiving waters and may 
cause more stringent water quahty based 
effluent limitations to be estabhshed for 
dischargers downstream. 

(3) The Division may require supplemental 
documentation from the affected local 
government that a proposed project or 
parts of the project are necessary for im- 
portant economic and social development. 

(4) The Commission and division Division 
will work with local governments on a 
voluntary basis to identify and develop 
appropriate management strategies and/or 
classifications for waters with unused 
pollutant loading capacity to accommo- 
date future economic growlh. 

Waters with quality higher than the standards 
will be identified by the Division on a case-by- 
case basis through the NPDES permitting and 



waste load allocation processes (pursuant to the 
provisions of 15A NCAC 2H .0100). 
Dischargers affected by the requirements of Par- 
agraphs (c)(1) through (c)(4) of this Rule and the 
public at large will be notified according to the 
provisions described herein, and all other appro- 
priate provisions pursuant to 15A NCAC 2H 
.0109. If an applicant objects to the require- 
ments to protect waters with quality higher than 
the standards and believes degradation is neces- 
sary to accommodate important social and eco- 
nomic development, the applicant can contest 
these requirements according to the provisions 
of General Statute 143-215.1(e) and 150B-23. 

(d) The Commission shall consider the present 
and anticipated usage of High Quality Waters 
(HQW), including any uses not specified by the 
assigned classification (such as outstanding na- 
tional resource waters or waters of exceptional 
water quahty) and will not allow degradation of 
the quality of High Quality Waters below the 
water quahty necessary to maintain existing and 
anticipated uses of those waters. High Quahty 
Waters are a subset of waters with quahty higher 
than the st;mdards and are as described by 15A 
NCAC 2B .0101(e)(5). The foUowing proce- 
dures win be implemented in order to meet the 
requirements of this part: 

(1) New or expanded wastewater discharges 

in High Quahty Waters will comply with 

the following: 

(A) Discharges from new single family res- 
idences will be prohibited. Those that 
must discharge wiU install a septic tank, 
dual or recirculating sand filters, disin- 
fection and step aeration. 

(B) All new NPDES wastewater discharges 
(except single family residences) will be 
required to provide the treatment de- 
scribed below: 

(i) Oxygen Consuming Wastes: Effluent 
limitations will be as follows: BOD, 
= 5 mg/1, NHj -N = 2 mg/1 and DO 
= 6 mg/1. More stringent limitations 
wiU be set, if necessary, to ensure that 
the cumulative pollutant discharge of 
oxygen-consuming wastes will not 
cause the DO of the receiving water to 
drop more than 0.5 mg/1 below back- 
ground levels, and in no case below the 
standard. Where background informa- 
tion is not readily available, evaluations 
will assume a percent saturation deter- 
mined by staff to be generally applicable 
to that hydroenvironmcnt. 

(ii) Total Suspended Sohds: Discharges 
of total suspended sohds (TSS) wiU be 
limited to effluent concentrations of 10 



7:6 NORTH CAROLINA REGISTER June 15. 1992 



505 



PROPOSED RULES 



mg,l for trout waters and PNA's, and 
to 20 mg,l for all other High Quality 
Waters, 
(iii) Disinfection: Alternative methods 
to chlorination will be required for dis- 
charges to trout streams, except that 
single family residences may use 
chlorination if other options are not 
economically feasible. Domestic dis- 
charges are prohibited to SA waters, 
(iv) Emergency Requirements: Failsafe 
treatment designs will be employed, in- 
cluding stand-by power capability for 
entire treatment works, dual train de- 
sign for all treatment components, or 
equi\alent failsafe treatment designs, 
(v) Volume: The total volume of treated 
wastewater for all discharges combined 
will not exceed 50 percent of the total 
instream flow under 7Q10 conditions, 
(vi) Nutrients: Where nutrient 

overenxichment is projected to be a 
concern, appropriate eflluent limita- 
tions win be set for phosphorus or ni- 
trogen, or both, 
(vii) Toxic substances: Ift gonural, only 
ti» dic ' chargo »f domo ' jtio Bf non 
pro CO OS waL . to' i Vutor wili be pcrmitto d 
iftte' High Quality Watcro. In cases 
where complex diochorgoG wastes (those 
containing or potentially containing 
toxicants) may be currontly present in 
the a discharge, a safety factor will be 
applied to any chemical or whole 
effluent to.xicity allocation. The limit 
for a specitic chemical constituent will 
be allocated at one-half of the normal 
standard at design conditions. Whole 
effluent toxicity will be allocated to 
protect for chronic toxicity at an 
effluent concentration equal to twice 
that which is acceptable under design 
conditions. In all instances there may 
be no acute toxicity in an effluent con- 
centration of 90 percent as measured by 
the North Carolma "Pass/Fail Meth- 
odology for Determining Acute 
Toxicity in a Single Fffluent Concen- 
tration". Ammonia toxicity will be 
e\aluated according to EPA guidelines 
promulgated in the Ammonia Criteria 
Development Document (1986); EPA 
document number 440 5-S5-001; NTIS 
number PB85-2271 14; July 29, 1985 (50 
FR 30784). 
(C) AH expanded NPDFS wastewater dis- 
charges in High Quahty Waters will be 
required to provide the treatment de- 



scribed in part (1)(B) of this Rule, except 
for those existing discharges which expand 
with no increase in permitted pollutant 
loading. 
(2) Development activities which require » 
Sodimontation • Erooion an Erosion and 
Sedimentation Control Plan in accord- 
ance with rules (15A NCAC, Chaptor 4) 
established by the NC Sedimentation 
Control Commission or an appropriate 
local erosion and sedimentation control 



program, and which drain to and are 
within one mile of High Quality Waters 
(HQW) win be required to control runoff 
from the one inch design storm as follows: 

(A) Low Density Option: Developments 
which limit single family developments to 
one acre lots and other type developments 
to 12 percent built-upon area, have no 
stormwater collection system as defined in 
ISA NCAC 2H .1002(13), and have 
built-upon areas at least 30 feet from sur- 
face waters wiU be deemed to comply with 
this requirement, unless it is determined 
that additional runoff control measures 
are required to protect the water quality 
of High Quality Waters necessary to 
maintain existing and anticipated uses of 
those waters, in which case more stringent 
stormwater runoff control measures may 
be required on a case-by-case basis. Ac- 
tivities conforming to the requirements 
-descnbed m I5A NCAC 2H .1003(a) 
[except for Subparagraphs (2) and (3) 
which apply only to waters within the 20 
coastal counties as defmed in 15A NCAC 
2H .1002(9)1 wiU also be deemed to com- 
ply with this requirement, except as pro- 
vided in the preceding sentence. 

(B) High Density Option: Higher density 
developments will be allowed if 
stormwater control systems utilizing wet 
detention ponds as descnbed ui 15A 
NCAC 2H .1003(i), (k) and (1) are in- 
stalled, operated and maintained which 
control the runoff from all built-upon 
areas generated from one inch of rainfall, 
unless it is determined that additional 
runoff control measures are required to 
protect the water quality of High Quality 
Waters necessary to maintain existing and 
anticipated uses of those waters. In which 
case more stringent stormwater runoff 
control measures may be required on a 
case-by-case basis. The size of the control 
system must take into account the runoff 
from any pervious surfaces draining to the 
system. 



506 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(C) All waters classified WS-I or WS-II and 
all waters located in the 20 coastal coun- 
ties as defined in Rule 15A NCAC 2H 
.1002(9) are excluded from this require- 
ment since they already have requirements 
for nonp>oint source controls. 
If an applicant objects to the requirements to 
protect high quality waters and believes degrada- 
tion is necessary to accommodate important so- 
cial and economic development, the appUcant 
can contest these requirements according to the 
provisions of G.S, 143-21 5. 1(e) and 150B-23. 
(e) Outstanding Resource Waters (ORW) are 
a special subset of High Quality Waters with 
unique and special characteristics as described in 
Rule .0216 of this Section. The water quality of 
waters classified as ORW shall be maintained 
such that existing uses, including the outstanding 
resource values of said Outstanding Resource 
Waters, will be maintained and protected. 

Statutory Authority G.S. 143-214.1; 143-215.1; 
l43-215.3(a){l). 

.0202 DEFINITIONS 

The definition of any word or phrase used in 
these rules shall be the same as given in Article 
21, Chapter 143 of the General Statutes of North 
Carolina. The following words and phrases, 
which are not defined in this article, wiU be in- 
terpreted as follows: 
(1) Acute toxicity to aquatic life means 
lethality or other harmful effects sustained 
by either resident aquatic populations or in- 
dicator species used as test organisms in a 
controlled toxicity test due to a short-term 
exposure (relative to the life cycle of the 
organism) to a specific chemical or mixture 
of chemicals (as in an effluent). Short-term 
exposure for acute tests is generally 96 hours 
or less. Acute toxicity wiU be determined 
using the most appropriate of the foOowing 
procedures: 

(a) for specific chemical constituents or com- 
pounds, acceptable levels wUl be equiv- 
alent to a concentration of one-half or less 
of the Final Acute Value (FAV) as deter- 
mined according to "Guidelines for De- 
riving Numerical Water Quality Criteria 
for the Protection of Aquatic life and its 
Uses" pubhshed by the Fnvironmental 
Protection Agency and referenced in the 
Federal Register (50 FR 30784, July 29, 
1985). 

(b) for specific chemical constituents or com- 
pounds, acceptable levels will be equiv- 
alent to a concentration of one-third or 
less of the lowest available LC50 value. 



(c) for effluents, acceptable levels are defmed 
as no statistically measurable lethality (99 
percent confidence level using Students t 
test) during a specified exposure period. 
Concentrations of exposure will be deter- 
mined on a case-by-case basis. 

(d) in instances where detailed dose response 
data indicate that acceptable levels are 
significantly different from those defined 
in this Rule, the Director may determine 
on a case-by-case basis an alternate ac- 
ceptable level through statistical analyses 
of the dose response curve. 

(2) Acute to Chronic Ratio (ACR) means the 
ratio of acute toxicity expressed as an LC50 
for a specific toxicant or an effluent to the 
chronic value for the same toxicant or 
effluent. 

(3) Agricultural uses include the use of waters 
for stock watering, irrigation, and other farm 
purposes. 

(4) Approved treatment, as applied to water 
supplies, means treatment accepted as satis- 
factory by the authorities responsible for 
exercising supervision over the quality of 
water suppUes. 

(5) Average (except bacterial) means arithme- 
tical average and includes the analytical re- 
sults of all samples taken during the specified 
period; all sampling shall be done as to ob- 
tain the most representative sample under 
prevailing conditions: 

(a) Daily Average for dissolved oxygen, shall 
be of at least four samples; 

(b) Weekly Average means the average of all 
daily composite samples obtained during 
the calendar week; if only one grab sample 
is taken each day, the weekly average is 
the average of all daily grab samples; a 
minimum of three daily grab samples is 
needed to calculate a weekly average; 

(c) Monthly Average means the average of all 
daily composites (or grab samples if only 
one per day) obtained during the calendar 
month. 

The dcfmitions in this Paragraph do not 
affect the monitoring requirements for 
NPDES permits but rather are to be used 
by the Division along with other method- 
ologies in determining violations of water 
quality standards. Arithmetical averages 
as defmed by this Rule, and not confi- 
dence limits nor other statistical de- 
scriptions, will be used in all calculations 
of limitations which require the use of 
averages pursuant to this Rule and 40 
CFR 122.41(l)(4)(iii). 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



507 



PROPOSED RULES 



(6) Best Management Practice (BMP) means 
a structural or nonstructural management- 
based practice used singularly or in combi- 
nation to reduce nonpoint source inputs to 
receiving waters in order to achie\e water 
quality protection goals. 

(7) Best usage of waters as specified for each 
class means those uses as determined by the 
Environmental Management Commission in 
accordance with the provisions of Article 21, 
Chapter 143-214.1, General Statutes of 
North Carolina. 

fS^ Biociocumulati' . o moano oubotanooo which 
a#e tLikon Hpr concL ' ntratL ' d. aft4 rotmnod hf 
aft organii i in from it* on' i ironmont. 

(8) Bioaccumulation factor (BAF) is a unitless 
\alue that descnbes the degree to which 
substances are taken up or accumulated into 
tissues of aquatic orgamsms from water di- 
recth' and from food or other ingested ma- 



tenals 



containma 



the 



accumulated 



substances, and is usually measured as a ra^ 
tio of a substanci 



e_s concentration in tissue 

\ersus its concentration in water in situ- 
ations where exposure to the substance is 
occumng from both water and the food 
cham. 

(9) Bioconcentration factor (BCF) is a urutless 
\alue that descnbes the degree to which 
substances arc absorbed or concentrated into 
tissues of aquatic orgamsms from water di- 
rectly and IS usuaUv measured as a ratio of 
a substance's concentration in tissue versus 
its concentration in water in situations where 
exposure to the substance is occumng from 
water onh . 

( 10) Biological integritv means the ability of an 
aquatic ecosystem to support and mamtain 
a balanced and indigenous community of 
organisms ha\mg a species composition, di- 
\ersitv and functional organization compa- 
rable to that of the natural habitats within a 
region or subregion. 



(11) >S^ Cliromc toxicity to aquatic Life means 
any harmful effect sustained by either resi- 
dent aquatic populations or indicator species 
used as test organisms in a controlled 
toxicity test due to long-term exposure (rel- 
ative to the life cycle of the organism) or 
exposure during a substantial portion of the 
duration of a sensitive period of the life cycle 
to a specific chemical substance or mixture 
of chemicals (as in an effluent). In absence 
of extended periods of exposure, early life 
stage or reproductive toxicity tests may be 
used to defme chronic impacts. 

( 12) f4-f^ Chronic \alue for aquatic life means 
the geometric mean of two concentrations 



identified in a controlled toxicity test as the 
No Observable Effect Concentration 
(NOEC) and the Lowest Observable Effect 
Concentration (LOEC). 

( 13) f44-^ Concentrations are the mass of a sub- 
stance per volume of water and for the pur- 
poses of this Section will be expressed as 
milligrams per liter (mg I), micrograms per 
liter (ug 1), or nanograms per liter (ng/1). 

(14) (44f Critical habitat areas are defined for 
the purposes of the rules of this Section as 
those waters which are considered to be es- 
sential for the continued existence of an en- 
dangered or threatened species, and which 
are so designated by the NC Wildlife Re- 
sources Commission for animals or the NC 
Department of Agriculture for plants. 

( 1 5) fy^ Designated Nonpwint Source .\gency 
means those agencies specified by the Gov- 
ernor in the North Carolina Nonpoint 
Source Management Program, as approved 
by the Environmental Protection Agency. 

( 16) (44f Discharge is the addition of any man- 
mduced waste effluent either directly or in- 
directly to state surface waters. 

( 17) (44^ Division means the Division of Envi- 
ronmental .Management or its successors. 

( 1 H) f44^ Effluent channel means a discemable 
confined and discrete conveyance which is 
used for transporting treated wastewater to 
a receiving stream or other body of water as 
provided in Rule .0215 of this Section. 

( I'j) f4-^ E.xisting uses mean uses actually at- 
tained in the water body, in a significant and 
not incidental manner, on or after Novem- 
ber 28, 1975, whether or not they are in- 
cluded in the water quality standards, which 
either have been actually available to the 
public or are uses deemed attainable by the 
Environmental Management Conmiission. 
At a minimum, uses shall be deemed attain- 
able if they can be achieved by the imposi- 
tion of effluent limits and cost-effective and 
reasonable best management practices 
(BMPs) for nonpoint source control. 

(20) (4-^ Fishing means the taking of fish by 
sport or commercial methods as well as the 
consumption of fish or sheUfish or the 
propagation of fish and such other aquatic 
life as is necessary to provide a suitable en- 
vironment for fish. 

(21) (4% Freshwater means all waters that un- 
der natural conditions would have a chloride 
ion content of 500 mg 1 or less. 

(22) (50^ LC50 means that concentration of a 
toxic substance which is lethal (or 
immobilizing, if appropriate) to 50 percent 
of the organisms tested during a specified 



508 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



exposure period. The LC50 concentration 
for toxic materials shall be determined for 
appropriate sensitive species under aquatic 
conditions characteristic of the receiving 
waters. 

(23) f244 Lower piedmont and coastal plain 
waters mean those waters of the Catawba 
River Basin below Lookout Shoals Dam; 
the Yadkin River Basin below the junction 
of the Forsyth, Yadkin, and Davie County 
lines and all of the waters of Cape Fear; 
Lumber; Roanoke; Neuse; Tar-Pamhco; 
Chowan; Pasquotank; and White Oak River 
Basins, except tidal salt waters which are 
assigned S classifications. 

(24) (5^ \IF is an abbreviation for the mem- 
brane filter procedure for bacteriological 
analysis. 

(25) f3^ Mixing zone means a region of the 
receiving water in the vicinity of a discharge 
within which dispersion and dilution of 
constituents in the discharge occurs and such 
zones shall be subject to conditions estab- 
lished in accordance with 15A NCAC 28 
.0204(b). 

(26) f34| Mountain and upper piedmont waters 
mean all of the waters of the Hiwassee; Little 
Tennessee, including the Savannah River 
drainage area; French Broad; Broad; New; 
and Watauga River Basins and those 
portions of the Catawba River Basin above 
Lookout Shoals Dam and the Yadkin River 
Basin above the junction of the Forsylh, 
Yadkin, and Davie County lines. 

(27) f5^ Nonpoint source pollution means 
pollution which enters waters mainly as a 
result of precipitation and subsequent runoff 
from lands which have been disturbed by 
man's activities and includes all sources of 
water pollution which are not required to 
have a permit in accordance with G.S. 
143-215. 1(c). 

(28) f^^)' Nutrient sensitive waters mean those 
waters which are so designated in the classi- 
fication schedule in order to limit the dis- 
charge of nutrients (usually nitrogen and 
phosphorus). They are designated by 
"NSW" foUowing the water classification. 

(29) f3^ Offensive condition means any condi- 
tion or conditions resulting from the pres- 
ence of sewage, industrial wastes or other 
wastes within the waters of the state or along 
the shorelines thereof which shall either di- 
rectly or indirectly cause foul or noxious 
odors, unsightly conditions, or breeding of 
abnormally large quantities of mosquitoes 
or other insect pests, or shall damage private 
or public water supplies or other structures, 



result in the development of gases which 
destroy or damage surrounding property, 
herbage or grasses, or which may cause the 
impairment of taste, such as from fish flesh 
tainting, or affect the health of any person 
residing or working in the area. 

(30) fS^ Primary Nursery Areas (PNAs) are 
tidal saltwaters which provide essential 
habitat for the early development of com- 
mercially important fish and shellfish and are 
so designated by the Marine Fisheries 
Commission. 

(31) f20| Primary recreation includes swimming, 
skin diving, skiing, and similar uses involv- 
ing human body contact with water where 
such activities take place in an organized or 
on a frequent basis. 

(32) f^% Secondary recreation includes wading, 
boating, other uses not involving human 
body contact with water, and activities in- 
volving human body contact with water 
where such activities take place on an infre- 
quent, unorganized, or incidental basis. 

(33) (4-^4 Sensitive species for aquatic toxicity 
testing is any species utilized in procedures 
accepted by the Commission or its designee 
in accordance with Rules .0211(b)(3)(L) or 
.0212(b)(3)(L) of this Section, or the fol- 
lowing genera: 

(a) Daphnia; 

(b) Ceriodaphnia; 

(c) Salmo; 

(d) Pimephales; 

(e) Mysidopsis; 

(f) Champia; 

(g) Cyprinodon; 
(h) .Arbacia; 

(i) Penaeus; 

(j) Menidia; 

(k) Notropis; 

(1) Salvehnus; 

(m) Oncorhynchus; 

(n) Selenastrum. 
Other genera may be accepted by the Com- 
mission or its designee on a case-by-case ba- 
sis. 

(34) f4^ Shellfish culture includes the use of 
waters for the propagation, storage and 
gathering of oysters, clams, and other 
shellfish for mjirket purposes. 

(35) f4^ Source of water supply for drinking, 
culinary or food-processing purposes mcains 
any source, either public or private, the wa- 
ters from which are used for human con- 
sumption, or used in cormection with the 
processing of milk, beverages, food, or other 
purpose which requires water meeting the 
Maximum Contaminant Levels (MCLs) in 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



509 



PROPOSED RULES 



the North Carolina Rules Governing Public 
Water Supplies, W > . CAC 44© 4404 15A 
NCAC 18C .1500 as weU as MCLs 
promulgated by the Environmental Pro- 
tection Agency pursuant to the Public 
Health Service Act, 42 U.S.C. 201 et seq., 
as amended by the Safe Drinkinij Water Act, 
42 U.S.C. 300(f) (g)-l et seq. 

(36) (44-} Swamp waters mean those waters 
which are classified by the Environmental 
\lanagement Commission and which are 
topographically located so as to generally 
have very low velocities and certain other 
characteristics which are different from ad- 
jacent streams draining steeper topography. 
They are designated by "Sw" following the 
water classification. 

(37) (44} Tidal salt waters mean all tidal waters 
which are classified by the Environmental 
Management Commission which generally 
have a natural chloride ion content in excess 
of 500 parts per million and include all wa- 
ters assigned S classifications. 

(38) f44} Toxic substance or toxicant means any 
substance or combination of substances (in- 
cluding disease-causing agents), which after 
discharge and uf)on exposure, ingestion, 
inhalation, or assimilation into any 
organism, either directly from the environ- 
ment or indirectly by ingestion through food 
chains, has the potential to cause death, dis- 
ease, behavioral abnormalities, cancer, ge- 
netic mutations, physiological malfunctions 
(including malfunctions or suppression in 
reproduction or growth) or physical 
deformities in such organisms or their off- 
spring or other adverse health effects. 

(39) (44} Trout waters are those waters which 
have conditions which will sustain and allow 
for trout propagation and survival of stocked 
trout on a year-round basis. These waters 
are classified by the Commission after con- 
sidering the requirements of Rule .0101(b) 
and (c) of this Subchapter and include all 
waters designated by "Tr" in the water clas- 
sification. 

(40) (4% Waste disposal includes the use of 
waters for disposal of sewage, mdustrial 
waste or other waste after approved treat- 
ment. 

(41) (4% Water quality based effluent limits and 
best management practices are limitations 
or best management practices developed by 
the Division for the purpose of protecting 
water quality standards and best usage of 
surface waters consistent with the require- 
ments of General Statute 143-214.1 and the 



Federal Water Pollution Control Act as 
amended. 

(42) f44) Waters with quality higher than the 
standards means all waters for which the 
determination of waste load allocations 
(pursuant to Rule .0206 of this Section) in- 
dicates that water quality is sufficiently 
greater than that defined by the standards 
such that significant pollutant loading ca- 
pacity stdl exists in those waters. 

(43) Wetlands are waters as defmed by General 
Statute 143-212(6) and are areas that are 
inundated or saturated bv an accumulation 



of surface or ground water at a frequency 
and duration sufficient to support, and that 
under normal circumstances do support, a 
prevalence of vegetation typically adapted 
for lile m saturated soil conditions. 



Statutory A uthority 

143-21S.3(a)(l). 



G.S. 



143-214.1. 



.0206 FLOW DESIGN CRITERIA FOR 
EFFLUENT LIMITATIONS 

(a) Water quahty based effluent limitations are 
developed to allow appropriate frequency and 
duration of deviations from water quahty stand- 
ards so that the designated uses of receiving wa- 
ters are protected. There are water quality 
standards for a number of categories of pollutants 
and to protect a range of water uses. For this 
reason, the appropriate frequency and duration 
of deviations from water quality standards is not 
the same for all categories of standards. A flow 
design criterion is used in the development of 
water quality based effluent limitations as a sim- 
plified means of estimatmg the acceptable fre- 
quency and duration of deviations. More 
complex modeUing techniques can also be used 
to set effluent limitations directly based on fre- 
quency and duration criteria pubhshed by the 
U.S. Environmental Protection Agency pursuant 
to Section 304(a) of the Federal Clean Water Act 
as amended. Use of more complex modelling 
techniques to set water quality based effluent 
Umitations will be approved by the Commission 
or its designee on a case-by-case basis. Flow 
design criteria to calculate water quahty based 
effluent Limitations for categories of water quality 
standards are hsted as follows: 

(1) /VU standards except toxic substances and 
aesthetics will be protected using the 
minimum average flow for a period of 
seven consecutive days that has an average 
recurrence of once in ten years (7Q10 
flow). Other governing flow strategies 
such as varying discharges with the re- 
cei\'ing waters abihty to assimilate wastes 



510 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



may be designated by the Commission or 
its designee on a case-by-case basis if the 
discharger or permit applicant provide ev- 
idence which establishes to the satisfaction 
of the Director that the altemative flow 
strategies will give equal or better pro- 
tection for the water quality standards. 
Better protection for the standards means 
that deviations from the standard would 
be expected less frequently than provided 
by using the 7Q10 flow. 

(2) Toxic substance standards to protect 
aquatic life from chronic toxicity will be 
protected using the 7Q10 flow. 

(3) Toxic substance standards to protect hu- 
man health will be: 

(A) The 7Q10 flow for standards to protect 
water supply «*t»s human health through 
the consumption of water, flsh and 
shellfish from noncarcinogens; 

(B) The mean annual flow to protect hu- 
man health from carcinogens through the 
consumption of water, »ft4 flsh (and/or 
shoUii ' ih) and shellfish unless site specific 
fish contamination concerns necessitate 
the use of an altemative design flow; 

(4) Aesthetic quaUty wiU be protected using 
the minimum average flow for a period 
of 30 consecutive days that has an average 
recurrence of once in two vears {30Q2 
flow). 

(b) In cases where the stream flow is regulated, 
a minimum daily low flow may be used as a 
substitute for the 7Q10 flow except in cases 
where there are acute toxicity concerns for 
aquatic life. In the cases where there are acute 
toxicity concerns, an altemative low flow such 
as the instantaneous minimum release may be 
used on a case-by-case basis. 

(c) Flow design criteria are used to develop 
water quahty based effluent limitations and for 
the design of wastewater treatment facilities. 
Deviations from a specitic water quality standard 
resulting from discharges which are affirmatively 
demonstrated to be in comphance with water 
quality based effluent limitations for that stand- 



ard will not be a violation pursuant to G.S. 
143-215.6 when the actual flow is significantly 
less than the design flow. 

(d) In cases where the 7Q10 flow of the re- 
ceiving stream is estimated to be zero, water 
quality based effluent limitations will be assigned 
as follows: 

(1) Where the 30Q2 flow is estimated to be 
greater than zero, effluent limitations for 
new or expanded (additional) discharges 
of oxvgen consuming waste will be set at 
BODj = 5 mg/1, NHj -N = 2 mg/1 and 
DO = 6 mg/1, unless it is determined that 
these limitations wdl not protect water 
quality standards. Requirements for ex- 
isting discharges will be determined on a 
case-by-case basis by the Director. More 
stringent limits will be appUed in cases 
where violations of water quality stand- 
ards are predicted to occur for a new or 
expanded discharge with the limits set 
pursuant to this Rule, or where existing 
limits are determined to be inadequate to 
protect water quahtv standards. 

(2) If the 30Q2 and 7Q'iO flows are both esti- 
mated to be zero, no new or expanded 
(additional) discharge of oxygen consum- 
ing waste wdl be allowed. Requirements 
for existing discharges to streams where 
the 30Q2 and 7Q10 flows are both esti- 
mated to be zero will be determined on a 
case-by-case basis. 

(3) Other water quality standards wdl be pro- 
tected by requiring the discharge to meet 
the standards unless the altemative limi- 
tations are determined by the Director to 
protect the classified water uses, 

(e) Receiving water flow statistics will be esti- 
mated through consultation with the U.S. 
Geological Survey. Estimates for any given lo- 
cation may be based on actual flow data, model- 
ling analyses, or other methods determined to be 
appropriate by the Commission or its designee. 



Statutory Authority 

l43-215.3(a)(l). 



G.S. 



143-214.1; 



.0208 STANDARDS FOR TOXIC SUBSTANCES AND TEMPERATURE 

(a) Toxic Substances. The concentration of toxic substances, either alone or in combination with 
other wastes, in surface waters wUl not render waters injurious to aquatic life or wildlife, recreational 
activities, public health, or impair the waters for any designated uses. Specific standards for toxic 
substances to protect freshwater and tidal saltwater uses are listed in Rules .0211 and .0212 of this 
Section, respectively. Procedures for interpreting the narrative standard for toxic substances and nu- 
merical standards applicable to aU waters are as follows: 
(1) Aquatic life standards. The concentration of toxic substances wiU not result in chronic toxicity. 
Any levels in excess of the chronic value will be considered to result in chronic toxicity. In the 
absence of direct measurements of chronic toxicity, the concentration of toxic substances will 
not exceed the concentration specified by the fraction of the lowest LC50 value which predicts 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



511 



PROPOSED RULES 



a no effect chronic level (as determined by the use of acceptable acute/chronic ratios). If an 
acceptable acute.chronic ratio is not available, then that toxic substance will not exceed one-one 
hundredth (0.01) of the lowest LC50 or if it is affirmatively demonstrated that a toxic substance 
has a half-life of less than 96 hours the maximum concentration will not exceed one-twentieth 
(0.05) of the lowest LC50. 
(2) Human health standards. 1 he concentration of toxic substances \\\W not exceed the level nec- 
essary to protect human health through exposure routes offish (or shellfish) tissue consumption, 
water consumption, or other route identified as appropriate for the water body. 

(A) For non-carcinogens, these concentrations wiU be determined using a Reference Dose (RfD) 
as published by the U.S. Environmental Protection Agency pursuant to Section 304(a) of the 
Federal Water PoUution Control Act as amended or a RfD issued by the U.S. Environmental 
Protection Agency as listed in the Integrated Risk Information System (IRIS) fde or a RfD ap- 
proved by the Director after consultation with the State Health director. Water quahty stand- 
ards or criteria used to calculate water quahty based effluent Limitations to protect human health 
through the different exposure routes are determined as follows: 

(i) Fish tissue consumption: 

WQS = (RfD-DT) X Body Weight / (FCRxBCF) 
where: 

WQS = water quahty standard or criteria; 

RfD = reference dose: 

DT = estimated non-fish dietary mtake (when available); 

FCR = fish consumption rate (assumed to be 6.5 gm person-day); 

BCF = bioconcentration factor, or bioaccumulation factor (BAF), as appropriate. 
BCF or BAF values are based on U.S. Fnvironmental Protection Agency publications 
pursuant to Section 304(a) of the Federal Water Pollution Control Act as amended, htera- 
ture values, or site specific bioconcentration data appro\ed by the Commission or its 
designee; FCR values are a%-erage consumption rates for a 70 Kg aduh for the lifetime of 
the population; alternative FCR values may be used when it is considered necessary to 
protect localized populations which may be consuming fish at a higher rate; 
(ii) Water consumption (including a correction for fish consumption): 
WQS = (RfD-DT) X Body Weight - [WCR-i- (FCRxBCF)) 
where; 

WQS = water quality standard or critena; 

RfD = reference dose; 

DT = estimated non-fish dietary intake (when available); 

FCR = fish consumption rate (assumed to be 6.5 gm person-day); 

BCF = bioconcentration factor, or bioaccumulation factor (B.-\F), as appropriate; 

WCR= water consumption rate (assumed to be 2 hters per day tor adults). 
To protect sensitive groups, exposure may be based on a 10 Kg child drinking one hter of 
water per day. Standards may also be based on drinking water standards based on the re- 
quirements of the Federal Safe Drinking Water Act [42 U.S.C. 300(f)(g)-l.] For non- 
carcmogens, specific numerical water quality standards have not been included in this Rule 
because water qu;ility standards to protect aquatic He for all to.\ic substances for which 
standards have been considered are more stringent than numerical standards to protect hu- 
man health from non-carcinogens through consumption offish: standards to protect human 
health from non-carcinogens through water consumption are hsted under the water supply 
classification standards in Rule .021 1 of this Section; the equations listed in this Subpara- 
graph will be used to de\elop water quahty based effluent limitations on a case-b\ -case basis 
for toxic substances which are not presently included in the water quality standards. Al- 
ternative FCR values may be used when it is considered necessan' to protect localized 
populations which may be consuming tish at a higlier rate; 

(B) For carcinogens, the concentrations of toxic substances wdl not result in unacceptable health 
risks and wdl be based on a Carcinogenic Potency Factor (CPF). .-Vn unacceptable health risk 
for cancer wdl be considered to be more than one case of cancer per one million people exposed 
(10"' risk level). The CPF is a measure of the cancer-causing potency of a substance estimated 
by the upper 95 percent conlidence hmit of the slope of a straight Ime calculated b) the 
Linearized Multistage Model or other appropriate model according to L.S. Fnvironmental 
Protection Agency "Cuidelmes [FR 51 (185): 33992-34003; and^ FR 45 (231 Part V): 



512 7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



79318-79379]. Water quality standards or criteria for water quality based effluent limitations are 
calculated using the procedures given in Subparagraphs (A) and (B) of this Rule. Standards to 
protect human health from carcinogens through water consumption are listed under the water 
supply classification standards in Rule .0211 of this Section; standards to protect human health 
from carcinogens through the consumption of fish (and shellfish) only are apphcable to all wa- 
ters as follows: 
(i) Berylium: 117ng/l; 
(ii) Benzene: 71.4 ug/1; 
(iii) Carbon tetrachloride: 4.42 ug/I; 
(iv) Dio.>dn: 0.000014 ngl; 
(v) Hexachlorobutadiene: 49.7 ug/1; 
(vi) Polychlorinated biphenyls: 0.079 ng/l; 
(vii) Polynuclear aromatic hydrocarbons: 31.1 ng/l; 
(viii) Tetrachloroethane (1,1,2,2): 10.8 ug/1; 
(ix) Tricliloroethylene: 92.4 ug/1; 
(x) Vinyl chloride: 525 ug/1; 
(xi) Aldrin: 0.136 ng/l; 
(xii) Chlordane: 0.588 ng/l; 
(xiii) DDT: 0.591 ng/l; 
(xiv) Dieldnn: 0.144 ng/l; 
(xv) Heptachlor: 0.214 ng/l. 

The values listed in (i) through (xv) in Subparagraph (B) of this Rule may be adjusted by the 
Commission or its designee on a case-by-case basis to account for site-specific or chemical- 
specific information pertaining to the assumed BCF, BAF, FCR or CPF values or other ap- 
propriate data, 
(b) Temperature. The Commission may estabhsh a water quality standard for temperature for spe- 
cific water bodies other than the standards specified in Rules .0211 and .0212 of this Section, upon a 
case-by-case determination that thermal discharges to these waters, which serve or may serve as a source 
and/or receptor of industrial cooling water provide for the maintenance of the designated best use 
throughout a reasonable portion of the water body. Such revisions of the temperature standard must 
be consistent with the provisions of Section 316(a) of the Federal Water Pollution Control Act as 
amended and will be noted in Rule .0218 of this Section. 



Statutory Authority G.S. 143-214.1; l43-2l5.3(a)( I ). 



.0211 FRESH SURFACE WATER 

CLASSIFICATIONS AND STANDARDS 

(a) General. The water quality standards for 
all fresh surface waters are the basic standards 
applicable to Class C waters. Additional and 
more stringent standards applicable to other spe- 
cific freshwater classifications are sp>ecified in 
Paragraphs (c) through (f) of this Rule. 

(b) All fresh surface waters (Class C). 

(1) Best L sage of Waters. Aquatic life prop- 
agation and maintenance of biological in- 
tegrity (including fishing, and fish), 
wildlife, secondary recreation, agriculture 
and any other usage except for primary 
recreation or as a source of water supply 
for drinking, culinary or food processing 
purposes: 

(2) Conditions Related to Best Usage. The 
waters will be suitable for aquatic life 
propagation and maintenance of biolog- 
ical integrity. wUdlite, secondary recre- 
ation, and agriculture; sources of water 
pollution which preclude any of these uses 



on either a short-term or long-term basis 
wiU be considered to be violating a water 
qu;dity standard; 
(3) Quality standards appUcable to all fresh 
surface waters: 
(A) Chlorophyll a (corrected): not greater 
than 40 ug/1 for lakes, reservoirs, and 
other slow-moving waters not designated 
as trout waters, and not greater than 15 
ug 1 for lakes, resen'oirs, and other slow- 
moving waters designated as trout waters 
(not applicable to lakes and reser\-oirs less 
than ten acres in surface area); the Com- 
mission or its designee may prohibit or 
limit any discharge of waste into surface 
waters if, in the opinion of the Director, 
the surface waters experience or the dis- 
charge would result in growths of micro- 
scopic or macroscopic vegetation such 
that the standards estabhshed pursuant to 
this Rule would be violated or the in- 
tended best usage of the waters would be 
impaired; 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



513 



PROPOSED RULES 



(B) Dissolved oxygen: not less than 6.0 
mg/1 for trout waters; for non-trout wa- 
ters, not less than a daily average of 5.0 
mg/l with a minimum instantaneous value 
of not less than 4.0 mg/1; swamp waters, 
lake coves or backwaters, and lake bottom 
waters may have lower values if caused 
by natural conditions; 

(C) Floating solids; settleable solids; sludge 
deposits: only such amounts attributable 
to sewage, industrial wastes or other 
wastes as will not make the water unsafe 
or unsuitable for aquatic life and wildlife 
or impair the waters for any designated 
uses; 

(D) Gases, total dissolved: not greater than 
1 10 percent of saturation; 

(E) Organisms of the coliform group: fecal 
cohforms not to exceed a geometnc mean 
of 200; 100ml (MF count) based upon at 
least five consecutive samples examined 
during any 30 day penod; nor exceed 
400/ 100ml in more than 20 percent of the 
samples examined during such period; vi- 
olations of the fecal coliform standard are 
expected during rainfall e\ents and, in 
some cases, this violation is expected to 
be caused by uncontrollable nonpoint 
source pollution; all coliform concen- 
trations are to be analyzed using the 
membrane filter technique unless high 
turbidity or other adverse conditions ne- 
cessitate the tube dilution method; in case 
of controversy over results, the MPN 
5-tube dilution technique wiU be used as 
the reference method; 

(F) Oils; deleterious substances; colored or 
other wastes: only such amounts as will 
not render the waters injurious to public 
health, secondary recreation or to aquatic 
life and wildlife or adversely affect the 
palatability of fish, aesthetic quahty or 
impair the waters for any designated uses; 
for the purpose of implementing this 
Rule, oils, deleterious substances, colored 
or other wastes will include but not be 
limited to substances that cause a film or 
sheen upon or discoloration of the surface 
of the water or adjoinins shorelines pur- 
suant to 40 CFR 110.4(a')-(b); 

(G) pll: shall be normal for the waters in 
the area, which generally shall range be- 
tween 6.0 and 9.0 except that swamp wa- 
ters may have a pFl as low as 4.3 if it is 
the result of natural conditions; 

(H) Phenolic compounds: only such levels 
as will not result in fish-flesh tainting or 
impainnent of other best usage; 



(Ij Radioactive substances: 

(i) Combined radium-226 and 

radium-228: the maximum average 
aruiual activity level (based on at least 
four samples collected quartedy) for 
combined radium-226 and radium-228 
shall not exceed five picoCuries per li- 
ter; 
(ii) Alpha Emitters: the average annual 
gross alpha particle activity (including 
radium-226, but excluding radon and 
uranium) shall not exceed 15 
picoCuries per liter; 
(iii) Beta Emitters: the maximum average 
annual activity level (based on at least 
four samples, collected quarterly) for 
strontium-90 shall not exceed eight 
picoCuries per liter; nor shall the aver- 
age annual gross beta particle activity 
(excluding potassium-40 and other na- 
turally occurring radio-nucfides) exceed 
50 picoC'uries per liter; nor shall the 
maximum average annual activity level 
for tritium exceed 20,000 picoCuries per 
liter; 
(J) Temperature: not to exceed 2.8 degrees 
C (5.04 degrees F) above the natural water 
temperature, and in no case to exceed 29 
degrees C (84.2 degrees V-) for mountain 
and upper piedmont waters and 32 de- 
grees C (89.6 degrees F) for lower 
piedmont and coastal plain waters. The 
temperature for trout waters shall not be 
increased by more than 0.5 degrees C (0.9 
degrees F) due to the discharge of heated 
hquids, but in no case to exceed 20 de- 
grees C (68 degrees F); 
(K) Turbidity: the turbidity in the receiving 
water will not exceed 50 Nephelometric 
Turbidity Units (NTU) in streams not 
designated as trout waters and 10 NTU in 
streams, lakes or reservoirs designated as 
trout waters; for lakes and reservoirs not 
designated as trout waters, the turbidity 
will not exceed 25 NTU; if turbidity ex- 
ceeds these levels due to natural back- 
ground conditions, the existing turbidity 
level cannot be increased. Compliance 
with this turbidity standard can be met 
when land management activities employ 
Best Management Practices (BMPs) [as 
defmed by Rule .0202(6) of this Section] 
recommended by the Designated Non- 
point Source Agcncv [as defmed by Rul e 
.0202(12) Rule .0202(15) of this Section). 
BMPs must be in full compliance with all 
specifications governing the proper design, 



514 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



installation, operation and maintenance 

of such BMPs; 
(L) Toxic substances; numerical water 

quality standards (maximum pennissible 

levels) to protect aquatic life applicable to 

all fresh surface waters: 

(i) Arsenic: 50 ug/1; 

(ii) Beryllium: 6.5 ug/1; 

(iii) Cadmium: 0.4 ugl for trout waters 
and 2.0 ug 1 for non-trout waters; 

(iv) Chlorine, total residual: 17 ug/1 for 
trout waters (Tr); (Action Level of 17 
ug 1 for all waters not classified as trout 
waters (Tr); see Paragraph (b)(4) of this 
Rule); 

(v) Chromium, total recoverable: 50 
ug/1; 

(vi) Cyanide: 5.0 ug/1; 

(vii) Fluorides: 1.8mg/l; 

(viii) Lead, total recoverable: 25 ug'l; 
collection of data on sources, transport 
and fate of lead will be required as part 
of the toxicity reduction evaluation for 
dischargers that are out of compliance 
with whole effluent toxicity testing re- 
quirements and the concentration of 
lead in the effluent is concomitantly 
determined to exceed an instream level 
of 3.1 ug/1 from the discharge; 

(ix) MBAS (Mcthylene-Blue Active 
Substances): 0.5 mg/1; 

(x) Mercury: 0.012 ug/1; 

(xi) Nickel: 88 ug,l; 

(xu) Pesticides: 

(I) AJdrin: 0.002 ug/1; 

(II) Chlordane: 0.004 ug/1; 

(III) DDT: O.OOI ug/1; 

(IV) Demeton: O.I ug/1; 

(V) Dieldrin: 0.002 ug/1; 

(VI) Endosulfan: 0.05 ug/1; 

(VII) Endrin: 0.002 ug/I; 

(VIII) Guthion: 0.01 ug 1; 

(IX) Hcptachlor: 0.004 ug 1; 

(X) Lindane: O.OI ug/1; 

(XI) Methoxychlor: 0.03 ug/1; 

(XII) Mu-ex: 0.001 ug/i; 

(XIII) Parathion: 0.013 ug/1; 

(XIV) To.xaphene: 0.0002 ug/1; 

(xiii) Polychlorinated biphenyls: 0.001 

ug/1; 
(xiv) Selenium: 5 ug 1; 
(xv) Toluene: 11 ug/1 or 0.36 ug 1 in 

trout waters; 
(xvi) Trialkyltin compounds: 0.008 ug/1 

expressed as tributyltin. 
(4) Action Levels for Toxic Substances: if the 
Action Levels for any of the substances 
listed in this Subparagraph (which are 



generally not bioaccumulative and have 
variable toxicity to aquatic Ufe because of 
chemical form, solubility, stream charac- 
teristics and/or associated waste charac- 
teristics) are determined by the waste load 
allocation to be exceeded in a receiving 
water by a discharge under the specified 
low flow criterion for toxic substances 
(Rule .0206 in this Section), the discharger 
will be required to monitor the chemical 
and/or biological effects of the discharge; 
efforts shall be made by all dischargers to 
reduce or eliminate these substances from 
their effluents. Those substances for 
which Action Levels are listed in this 
Subparagraph will be limited as appropri- 
ate in the NPDES permit based on the 
Action Levels listed in this Subparagraph 
if sufficient information (to be determined 
for metals by measurements of that por- 
tion of the dissolved instream concen- 
tration of the Action Level parameter 
attnbutable to a specific NPDES permit- 
ted discharge) exists to indicate that any 
of those substances may be a significant 
causative factor resulting in toxicity of the 
effluent; 

(A) Copper: 7 ugi; 

(B) Iron: 1.0 mg/1; 

(C) Silver: 0.06 ug/1; 

(D) Zinc: 50 ug/1; 

(E) Chlonde: 230 mg/1; 

(F) Chlorine, total residual: 17 ug 1 in all 
waters except trout waters (Tr); (a stand- 
ard of 17 ug/1 exists for waters classified 
as trout waters and is apphcable as such 
to all dischargers to trout waters; see Piir- 
agraph (b)(3)(L)(iv) of this Section]; 

For purposes other than consideration of 
NPDES permitting of point source discharges as 
described in this Subparagraph, the Action Lev- 
els in this Rule, as measured by an appropriate 
anal\"tical technique, will be considered as nu- 
merical ambient water quality standards. 
(c) Class WS-I Waters. 

( 1 ) Best Usage of Waters. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users desir- 
ing maximum protection of their water 
supphes, and any best usage specified for 
Class C waters; 

(2) Conditions Related to the Best Usage. 
Waters of this class are protected water 
supplies within natural and uninhabitat e d 
uninhabited or predominantly undevel- 
oped (not urbanized) watersheds with no 
pennitted point source dischargers except 
those existing discharges qualifying for a 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



515 



PROPOSED RULES 



General Permit according to the require- 
ments of 15A NCAC 2H .0131 specifically 
approved by the Conunission at the time 
of classification: waters within this class 
must be relatively unimpacted by non- 
point sources of pollution; local land use 
management programs are required to 
protect waters from nonpoLnt source pol- 
lution; watersheds must be protected and 
the waters, following treatment required 
by the Division of Health Ser\ices, will 
meet the maximum contaminant levels 
considered safe for drinking, culinary, and 
food-processmg purposes which are spec- 
ified in the national drinking water regu- 
lations and in the North Carolina Rules 
Govemina Public Water Supphes, 4-& 
NCi\C ia» 4400t IM NCAC 18C 
.1500; sources of water pollution which 
preclude any of these uses on either a 
short-term or long-term basis will be 
considered to be violating a water quality 
standard; 
(3) Quahty Standards Applicable to Class 
WS-1 Waters: 

(A) Nonpoint Source Pollution: only that 
pollution which wiU not adversely impact 
the waters for use as a water supply or any 
other designated use; 

(B) Organisms of coliform group: total 
coliforms not to exceed 50/100 ml (MF 
count) as a monthly geometric mean 
value in watersheds ser\'ing as unfiltered 
Vt'ater supphes; 

(C) Phenolic compounds: not greater than 
1.0 ugi (phenols) to protect water sup- 
plies from taste and odor problems from 
chlorinated phenols; 

(D) Sewage, industrial wastes; none except 
those specified in Subparagraph (2) of this 
Paragraph; 

(E) Sohds, total dissolved: not greater than 
500 mg 1; 

(F) Total hardness: not greater than 100 
mg/1 as calcium carbonate: 

(G) Toxic and other deleterious substances: 
(i) Water quality standards (maximum 

permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for non- 
carcinogens in Class WS-I waters: 

(I) Banum: 1.0 mg/1; 

(II) Chlonde: 250 mg,l; 

(III) Manganese: 50 ug/1; 

(IV) Nickel: 25 ug 1; 

(V) Nitrate nitrogen: 10.0 mg/l; 

(VI) 2.4-D: 100 uel: 

(VII) 2,4,5-TP (Silvex): 10 ug,l; 



(VIII) Sulfates: 250 mg/1. 

(ii) Water quality standards (maximum 
permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for carcinogens 
in Class WS-I waters: 

(I) Ber\Uium: 6.8 ng/1; 

(II) Benzene: 1.19 ugl; 

(III) Carbon tetrachloride: 0.254 ug/1; 

(IV) Chlorinated benzenes: 488 ug/1; 

(V) Dioxm: 0.000013 ngl; 

(VI) Hexachlorobutadiene: 0.445 ug/1; 

(VII) Polynuclear aromatic 
hvdrocarbons: 2.8 ng/1; 

(Vlil) Tetrachloroethane (1,1,2,2): 
0.172 ug/'l; 

(IX) Tetrachloroethylene: 0.8 ug 1; 

(X) Trichloroethylene: 3.08 ug/1; 

(XI) Vmyl Chloride: 2 ug/1; 

(XII) .Aldrm: 0.127 ng/l; 

(XIII) Chlordanc: 0.575 ngi; 

(XIV) DDT: 0.588 ng/1; 

(XV) Dieldrin: 0.135 ngl; 

(XVI) Heptachlor: 0.208 ng/1. 
(d) Class WS-II Waters. 

(1) Best Usage of Waters. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users desir- 
ing maximum protection for their water 
supphes where a WS-I classification is not 
attainable and any best usage specified for 
Class C waters; this classification may also 
be used to protect critical portions of the 
watershed of Class WS-III waters; 

(2) Conditions Related to Best Usage. Waters 
of this class arc protected as water supplies 
which arc in low to moderately developed 
(urbanized) watersheds; only domestic 
wastewater discharges (excluding munici- 
pal dischargers required to have a pre- 
treatment program according to 15A 
NCAC 211 .0904) and industnal non- 
process discharges specifically approved 
by the E.MC are permitted in these 
watersheds; local governments must have 
land use management programs to protect 
these watersheds from pollution due to 
land development and other nonpoint 
sources; the waters, following treatment 
required by the Division of Health Ser- 
vices, will meet the maximum contam- 
in;mt levels considered safe for drinking, 
culinary, and food-processing purposes 
which are specified in the national drink- 
ing water regulations and in the North 
Carolina Rules Governing Pubhc Water 
Supphes, -W NCAC 44© rW^ 15A 
NCAC 18C .1500; sources of water pol- 



516 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



lution which preclude any of these uses 
on either a short-term or long-term basis 
will be considered to be violating a water 
quality standard; 
(3) Quality Standards Applicable to Class 
WS-II Waters: 

(A) Industrial Wastes: none except for 
non-process industrial discharges specif- 
ically approved by the Commission; 

(B) Nonpoint Source Pollution: only that 
pollution which will not adversely impact 
the waters for use as a water supply or any 
other designated use; 

(C) Odor producing substances contained 
in sewage or other wastes: only such 
amounts, whether alone or in combina- 
tion with other substances or wastes, as 
will not cause taste and odor difficulties in 
water supplies which cannot be corrected 
by treatment, impair the palatabdity of 
fish, or have a deleterious effect upon any 
best usage established for waters of this 
class; 

(D) Phenolic compounds: not greater than 
1.0 ug'l (phenols) to protect water sup- 
plies from taste and odor problems from 
chlorinated phenols; 

(E) Sewage: none which will have an ad- 
verse effect on human hedth or is not ef- 
fectively treated to the satisfaction of the 
Commission and in accordance with the 
requirements of the Division of Health 
Services, North Carolina Department of 
Human Resources; 

(F) Total hardness: not greater than 100 
mg/1 as calcium carbonate; 

(G) Total dissolved sohds: not greater than 
500 mg/1; 

(H) Toxic and other deleterious substances: 
(i) Water quality standards (maximum 
permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for non- 
carcinogens in Class WS-II waters: 

(I) Barium: 1.0 mg/1; 

(II) Chloride: 250 mg/1; 

(III) Manganese: 200 ug/1; 

(IV) Nickel: 25 ug'l; 

(V) Nitrate nitrogen: 10.0 mg/1; 

(VI) 2,4-D: 100 ugT; 

(VII) 2,4,5-TP: 10 U2/1; 

(VIII) Sulfates: 250.0 mg/1. 

(ii) Water quality standards (maximum 
permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for carcinogens 
in Class WS-II waters: 
(I) Ber>mum: 6.8 ng 1; 



(II) Benzene: 1.19 ugl; 

(III) Carbon tetrachloride: 0.254 ug 1; 

(IV) Chlorinated benzenes: 488 ug/1; 

(V) Dioxin: 0.O0O013 ng/I; 

(VI) Hexachlorobutadiene: 0.445 ug 1; 

(VII) Polynuclear aromatic 
hydrocarbons: 2.8 ng/I; 

(VIII) Tetrachloroethane (1,1,2,2): 
0.172 ug/l; 

(IX) Tetrachloroethylene: 0.8 ug,l; 

(X) Trichloroethylene: 3.08 ug/I; 

(XI) Vinyl Chloride: 2 ug/1; 

(XII) Aldrm: 0.127 ng/1; 

(XIII) Chlordane: 0.575 ng/1; 

(XIV) DDT: 0.588 ng/1; 

(XV) Dieldnn: 0.135 ng/1; 

(XVI) Heptachlor: 0.208 ng/1. 
(e) Class WS-III Waters. 

(1) Best Usage of Waters. Source of water 
supply for drinking, culinary, or food- 
processing purposes for those users where 
more protected sources are not feasible 
and any other best usage specified for 
Class C waters; 

(2) Conditions Related to Best Usage. The 
waters, after treatment required by the 
Division of Health Services, wiU meet the 
maximum contaminant levels considered 
safe for drinking, culinary, or food- 
processing purposes which are specified m 
the national drinking water regulations 
and in the North Carolina Rules Go\em- 
ing Public Water SuppUes, W NCAC 44© 
rWm 15A NCAC 18C .1500; sources of 
water pollution which preclude an>' of 
these uses on either a short-term or long- 
term basis will be considered to be violat- 
ing a water quahty standard; 

(3) Quality Standards Applicable to Class 
WS-III Waters: 

(A) Odor producing substances contained 
in sewage, industnal wastes, or other 
wastes: only such amounts, whether alone 
or in combination with other substances 
or wastes, as will not cause taste and odor 
difficulties in water supplies which cannot 
be corrected by treatment, impair the 
palatability of fish, or have a deleterious 
effect upon any best usage estabhshed for 
waters of this class; 
■ (B) Phenolic compounds: not greater than 
1.0 ug/1 (phenols) to protect water sup- 
phes from taste and odor problems from 
chlorinated phenols; specific phenolic 
compounds may be given a different limit 
if it is demonstrated not to cause taste and 
odor problems and not to be detrimental 
to other best usage; 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



517 



PROPOSED RULES 



(C) Sewage, industrial wastes, or other 
wastes: none which will have an adverse 
effect on human health or which are not 
effectively treated to the satisfaction of the 
Commission and in accordance with the 
requirements of the Division of Health 
Services, North Carolina Department of 
Human Resources; any discharger or in- 
dustrial users subject to pretreatment 
standards may be required upon request 
by the Commission to disclose all chemi- 
cal constituents present or potentially 
present in their wastes and chemicals 
which could be spilled or be present in 
runoff from their facility which may have 
an adverse impact on downstream water 
supplies classified WS-III; these facilities 
may be required to have spill and treat- 
ment failure control plans as weU as per- 
form special monitoring for to>dc 
substances; 

(D) Total hardness: not greater than 100 
mgl as calcium carbonate; 

(E) Total dissolved solids: not greater than 
500 mgl; 

(F) Toxic and other deleterious substances: 
(i) Water quality standards (maxmium 

permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for non- 
carcinogens in Class WS-IIl waters: 

(I) Barium: 1.0 mgl; 

(II) Chlonde: 250 mg/1; 

(III) Manganese: 200 ug/1; 

(IV) Nickel: 25 ug 1; 

(V) Nitrate nitrogen: 10.0 mg/l; 

(VI) 2,4-D: 100\jg,l; 

(VII) 2,4,5-TP (Silvex): 10 ug/1; 

(VIII) Sulfates: 250.0 mg/1. 

(ii) Water quality standards (maximum 
permissible levels) to protect human 
health through water consumption and 
fish tissue consumption for carcinogens 
in Class WS-III waters: 

(I) BervUium: 6.8 ngl; 

(II) Benzene: 1.19 ugl; 

(III) Carbon tetrachloride: 0.254 ugl; 

(IV) Chlorinated benzenes: 488 ugl; 

(V) Dioxm: 0.000013 ng/1; 

(VI) Hexachlorobutadiene: 0.445 ug/l; 

(VII) Polynuclear aromatic 
hvdrocarbons: 2.8 ng 1; 

(Vlil) Tctrachloroethane (1,1,2,2): 
0.172 ug/1; 

(IX) Tetrachloroethylene: 0.8 ug/1; 

(X) Trichloroethylcne: 3.08 ug/1; 

(XI) Vinvl Chlonde: 2 ug/1; 

(XII) .Aldrin: 0.127 ngl; 



(XIII) Chlordane: 0.575 ng/1; 

(XIV) DDT: 0.588 ng/1; 

(XV) Dieldrin: 0.135 ngl; 

(XVI) Heptachlor: 0.208 ng/I. 
(0 Class B Waters. 

(1) Best Usage of Waters. Primary' recreation 
and any other best usage specified by the 
"C" classification; 

(2) Conditions Related to Best Usage. The 
waters wiU meet accepted standards of 
water quality for outdoor bathing places 
and will be of sufficient size and depth for 
primary recreation purposes. Sources of 
water pollution which preclude any of 
these uses on either a short-term or long- 
term basis wiU be considered to be violat- 
ing a water quality standard; 

(3) Quality standards apphcable to Class B 
waters: 

(A) Sewage, industrial wastes, or other 
wastes: none which are not effectively 
treated to the satisfaction of the Commis- 
sion; in determining the degree of treat- 
ment required for such waste when 
discharged into waters to be used for 
bathing, the Commission will consider the 
quahty and quantity of the sewage and 
wastes involved and the proximity of such 
discharges to waters in this class; dis- 
charges in the immediate vicinity of bath- 
ing areas may not be allowed if the 
Director determines that the waste can not 
be rehably treated to ensure the protection 
of primary recreation; 

(B) Organisms of cohform group: fecal 
coliforms not to exceed geometric mean 
of 200/100 ml (MF courit) based on at 
least five consecutive samples examined 
during any 30-day period and not to ex- 
ceed 400/100 ml in more than 20 percent 
of the samples examined during such pe- 
riod. 

Statutory Authority G.S. 143-214.1; 

l43-2l5.3(a)(I). 

.0212 TID.AL SALT WATER 

CLASSIFICATIONS AND STANDARDS 

(a) General. The water quality standards for 
all tidal salt waters are the basic standards appli- 
cable to Class SC waters. Additional and more 
stringent standards applicable to other specific 
tidal salt water classifications are specilied in 
Paragraphs (c) and (d) of this Rule. 

(b) All tidal salt waters (Class SC). 

(1) Best Usage of Waters. Aquatic life prop- 
agation and maintenance of biological in- 
tegrity (including fishing, fish and 



51S 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



functioning PNAs), wildlife, secondary 
recreation, and any other usage except 
primary recreation or shellfishing for 
market purposes; 

(2) Conditions Related to Best Usage. The 
waters will be suitable for aquatic life 
propagation and maintenance of biolog- 
ical integrity, wildlife, and secondary re- 
creation; Any source of water p>oOution 
which precludes any of these uses, includ- 
ing their functioning as PNAs, on either 
a short-term or a long-term basis wiU be 
considered to be violating a water quality 
standard; 

(3) Quality standards applicable to all tidal 
salt waters: 

(A) Chlorophyll a (corrected): not greater 
than 40 ug 1 in sounds, estuaries, and 
other slow-moving waters; the Commis- 
sion or its designee may prohibit or limit 
any discharge of waste into surface waters 
if, in the opinion of the Director, the sur- 
face waters cxpenence or the discharge 
would result in growths of microscopic or 
macroscopic vegetation such that the 
standards estabhshed pursuant to this 
Rule would be violated or the intended 
best usage of the waters would be im- 
paired. 

(B) Dissolved oxygen: not less than 5.0 
mg/1, except that swamp waters, poorly 
flushed tidaUy influenced streams or 
embayments, or estuarine bottom waters 
may have lower values if caused by na- 
tural conditions; 

(C) Floating solids; settleable solids; sludge 
deposits: only such amounts attnbutable 
to sewage, industrial wastes or other 
wastes, as wiU not make the waters unsafe 
or unsuitable for aquatic life and wildlife, 
or impair the waters for any designated 
uses; 

(D) Gases, total dissolved: not greater than 
1 10 percent of saturation; 

(E) Organisms of coUform group: fecal 
coUforms not to exceed geometric mean 
of 200/ 100 ml (MF count) based upon at 
least five consecutive samples examined 
during any 30 day period; not to exceed 
400/100 ml in more than 20 percent of the 
samples examined during such period; vi- 
olations of the fecal cohform standard are 
expected during rainfall events and, in 
some cases, this violation is expected to 
be caused by uncontrollable nonpoint 
source poUution; all coliform concen- 
trations are to be analyzed using the MF 
technique unless high turbidity or other 



adverse conditions necessitate the tube di- 
lution method; in case of controversy over 
results the VIPN 5-tube dilution method 
will be used as the referee method; 

(F) Oils; deleterious substances; colored or 
other wastes: only such amounts as will 
not render the waters injurious to public 
health, secondary- recreation or to aquatic 
hfc and wildlife or adversely affect the 
palatabihty of fish, aesthetic quality or 
impair the waters for any designated uses; 
for the purpose of implementing this 
Rule, oils, deleterious substances, colored 
or other wastes will include but not be 
limited to substances that cause a film or 
sheen upon or discoloration of the surface 
of the water or adjoinina shorelines pur- 
suant to 40 CFR 110.4(aV(b). 

(G) pH: will be normal for the waters in 
the area, which generally wiU range be- 
tween 6.8 and 8.5 except that swamp wa- 
ters may have a pH as low as 4.3 if it is 
the result of natural conditions: 

(H) Phenolic compounds: only such levels 
as will not result in fish-flesh tainting or 
impairment of other best usage; 
(I) Radioactive substances: 

(i) Combined radium-226 and 

radium-228: The ma.ximum average 
annual activity level (based on at least 
four samples, collected quarterly) for 
combined radium-226, and radium-228 
will not exceed five picoCuries per Uter; 
(li) .Alpha Emitters. The average annual 
gross alpha particle activity (including 
radium-226, but excluding radon and 
uranium) wiU not exceed 15 picoCuries 
per hter; 
(lii) Beta Emitters. The maximum aver- 
age annual activity level (based on at 
least four samples, collected quarterly) 
for strontium-90 wiU not exceed eight 
picoCuries per Uter; nor shall the aver- 
age annual gross beta particle activity 
(excluding potassium-40 and other na- 
turally occurring radio-nuchdes) exceed 
50 picoCuries per liter; nor will the 
maximum average annual activity level 
for tritium exceed 20,000 picoCuries per 
liter; 
(J) Salinity: will not be appreciably modi- 
fied as a result of hydrologjcal modifica- 
tions in areas draining to PNAs; projects 
which are determined by the Director to 
result in the appreciable modification of 
salinity within a PNA vviU be required to 
employ appropriate water management 
practices; 



7:6 NORTH CAROLINA REGISTER June 15. 1992 



519 



PROPOSED RULES 



(K) Temperature: will not be increased 
above the natural water temperature by 
more than 0.8 degrees C (1.44 degrees F) 
during the months of June, July, and Au- 
gust nor more than 2.2 degrees C (3.96 
degrees F) during other months and in no 
cases to exceed 32 degrees C (89.6 degrees 
F) due to the discharge of heated Liquids; 
(L) Turbidity: the turbidity in the receiving 
water will not exceed 25 Nl U; if turbidity 
exceeds this level due to natural back- 
ground conditions, the existing turbidity 
level cannot be increased. Compliance 
with this turbidity standard can be met 
when land management activities employ 
Best Management Practices (B.MPs) [as 
defined by Rule .0202(6) of this Section] 
recommended by the Designated Non- 
point Source Asency (as defmed by Rule 
■0202(12) Rule ^0202(15) of this Section]. 
B.MPs must be m full compliance with all 
specifications governing the proper design, 
installation, operation and maintenance 
of such B.MPs; 
(.M) Toxic substances: numerical water 
quality standards (ma.ximum permissible 
levels) to protect aquatic life applicable to 
all tidal saltwaters: 

(i) xArsenic, total recoverable: 50 ug/1; 
(ii) Cadmium: 5.0 ug/1; 
(iii) Chromium, total: 20 ug 1; 
(iv) Cyarude: 1.0 ug,l; 
(v) .Mercurv-: 0.025 ugd; 
(vi) Lead, total recoverable: 25 ug,l; 
coOection of data on sources, transport 
and fate of lead will be required as part 
of the toxicity reduction evaluation for 
dischargers that are out of compliance 
with whole effluent toxicity testing re- 
quirements and the concentration of 
lead in the effluent is concomitantly 
determined to exceed an instream level 
of 3.1 ug 1 from the discharge; 
(vii) Nickel: 8.3 ug/1; 
(viii) Pesticides: 

(I) /Vldnn: 0.003 ug/1; 

(II) Chlordane: 0.004 U2 1; 

(III) DDT: 0.001 ugl; " 

(IV) Demeton: 0.1 ug/1; 

(V) Dieldrin: 0.002 ug/1; 

(VI) Endosulfan: 0.009 ug/l; 

(VII) Endrin: 0.002 ug/1; 

(VIII) Guthion: 0.01 ugl; 

(IX) Heptachlor: 0.004 ugl; 

(X) Lindane: 0.004 ug/1; 

(XI) Methoxvchlor: 0.03 ug/1; 

(XII) Mirex: 0.001 U2 1; 

(XIII) Parathion: 0.178 ugl; 



(XIV) To.xaphene: 0.0002 ug 1. 
(ix) Polycholorinated biphenvls: 0.001 

ug/1; 
(x) Selenium: 71 ugl; 
(xi) Trialkyltin compounds: 0.002 ug/1 

expressed as tributyhin. 
(4) Action Levels for Toxic Substances: if the 
Action Levels for any of the substances 
listed in this Subparagraph (which are 
generally not bioaccumulative and have 
variable toxicity to aquatic Hfe because of 
chemical form, solubility, stream charac- 
teristics and/or associated waste charac- 
teristics) are determined by the waste load 
allocation to be exceeded in a receiving 
water by a discharge under the specified 
low flow critenon for toxic substances 
(Rule .0206 in this Section), the discharger 
will be required to monitor the chemical 
and/or biological effects of the discharge; 
efforts shall be made by all dischargers to 
reduce or eliminate these substances from 
their etfluents. Those substances for 
which Action Levels are Listed in this 
Subparagraph may be limited as appro- 
priate in the NPDES permit if sufficient 
information exists to indicate that any of 
those substances may be a significant 
causative factor resulting in toxicity of the 
effluent. 

(A) Copper: 3 ug/1; 

(B) Silver: 0.1 ug'I; 

(C) Zinc: 86 ug/1. 
(c) Class SA Waters. 

(1) Best Usage of Waters. Shellfishing for 
market purposes and any other usage 
specified by the "SB" or "SC" classifica- 
tion; 

(2) Conditions Related to Best Usage, ^^'aters 
will meet the current sanitary and 
bacteriological standards as adopted by 
the Commission for Health Services and 
will be suitable for shellfish culture: any 
source of water pxDllution which precludes 
any of these uses, including their func- 
tioning as PNAs, on either a short-term 
or a long-term basis will be considered to 
be violating a water quality standard: 

(3) QuaUty Standards applicable to Class SA 
Waters: 

(A) Floating solids; settleable solids: sludge 
deposits: none attributable to sewage, 
industrial wastes or other wastes; 

(B) Sewage: none; 

(C) Industrial wastes, or other wastes: 
none which are not ctTectively treated to 
the satisfaction of the Commission in ac- 



520 



:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



cordance with the requirements of the 
Division of Health Services; 
(D) Organisms of coliform group: fecaJ 
coliform group not to exceed a median 
MF of 14/100 ml and not more than 10 
percent of the samples shall exceed an 
MF count of 43/100 ml in those areas 
most probably exposed to fecal contam- 
ination during the most unfavorable 
hydrographic and pollution conditions, 
(d) Class SB Waters. 

(1) Best Usage of Waters. Primary recreation 
and any other usage specified by the 
"SC" classification; 

(2) Conditions Related to Best Usage. The 
waters will meet accepted sanitary stand- 
ards of water quality for outdoor bathing 
places and will be of sufficient size and 
depth for primary recreation purposes; 
any source of water pollution which pre- 
cludes any of these uses, including their 
functioning as PNAs, on either a short- 
term or a long-term basis will be consid- 
ered to be violating a water quahty 
standard; 

(3) Quality Standards applicable to Class SB 
waters: 

(A) Floating sohds; settleable solids; sludge 
deposits: none attnbutable to sewage, 
industrial wastes or other wastes; 

(B) Sewage; industrial wastes; or other 
wastes: none which are not effectively 
treated to the satisfaction of the Commis- 
sion; in determining the degree of treat- 
ment required for such waters discharged 
into waters which are to be used for 
bathing, the Commission will take into 
consideration quantity and quahty of the 
sewage and other wastes involved and the 
proximity of such discharges to the waters 
in this class; discharges in the immediate 
vicinity of bathing areas may not be al- 
lowed if the Director determines that the 
waste can not be treated to ensure the 
protection of primary recreation; 

(C) Organisms of coliform group: fecal 
coliforms not to exceed a geometric mean 
of 200/100 ml (MF count) based on at 
least five consecutive samples examined 
during any 30 day period and not to ex- 
ceed 400/100 ml in more than 20 percent 
of the samples examined during such pe- 
riod. 

Statutory Authority G.S. 143-214.1; 

143-215 .3(a)(1). 

.0216 OLTSTANDINC RKSOLRCE WATKRS 



(a) General. In addition to the existing classi- 
fications, the Commission may classify certain 
unique and special surface waters of the state as 
outstanding resource waters (ORW) upon fmd- 
ing that such waters are of exceptional state or 
national recreational or ecological significance 
and that the waters have exceptional water qual- 
ity while meeting the following conditions: 

(1) there are no significant impacts from pol- 
lution with the water quahty rated as ex- 
ceUent based on physical, chemical and/or 
biological information; 

(2) the characteristics which make these wa- 
ters unique and special may not be pro- 
tected by the assigned narrative and 
numerical water quahty standards. 

(b) Outstanding Resource Values. In order to 
be classified as ORW, a water body must exhibit 
one or more of the following values or uses to 
demonstrate it is of exceptional state or national 
recreational or ecological signilicance: 

( 1) there are outstanding fish (or commercially 
important aquatic species) habitat and 
fisheries; 

(2) there is an unusually high level of water- 
based recreation or the potential for such 
recreation; 

(3) the waters have already received some 
special designation such as a North 
Carolina or National Wild and Scenic 
River, Native or Special Native Trout 
Waters, National Wildlife Refuge, etc, 
which do not provide any water quahty 
protection; 

(4) the waters represent an important com- 
ponent of a state or national park or for- 
est; or 

(5) the waters are of special ecological or sci- 
entific significance such as habitat for rare 
or endangered species or as areas for re- 
search and education. 

(c) Quahty Standards for ORW. 

(1) Freshwater: Water quahty conditions 
shaU clearly maintain and protect the 
outstanding resource values of waters 
classified ORW. Management strategies 
to protect resource values will be devel- 
oped on a site specific basis during the 
proceedings to classify waters as ORW. 
At a minimum, no new discharges or ex- 
pansions of existing discharges will be 
permitted, and stormwater controls for all 
new development activities requiring a 
Sodimont I ' rorion (/ontrol Plan an Fro- 
sion and Sedimentation Control Plan in 
accordance with rules established bv the 
NC' Sedimentation Control Commission 
or an appropriate local erosion and 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



521 



PROPOSED RULES 



sedimentation control program, will be 
required to control stormwalcr runofF as 
follows: 

(A) Low Density Option: Developments 
which limit single family developments to 
one acre lots and other type developments 
to 12 percent built-upon area, have no 
stormwater collection system as defmed in 
15A NCAC 211 .1002(13), and have 
built-upon areas at least 3U feet from sur- 
face water areas will be deemed to comply 
with this requirement, unless it is deter- 
mined that additional runoff control 
measures are required to protect the water 
quality of Outstanding Resource Waters 
necessary' to mam tain existing and antic- 
ipated uses of those waters, in which case 
more stringent stormwater runoff control 
measures mav be required on a case-bv- 
case basis. 

(B) High Density Development: Higher 
density developments will be allowed if 
stormwater control systems utilizing wet 
detention ponds as described in 15A 
NCAC 2H .1003(1), (k) and (1) are m- 
stalled, operated and maintained which 
control the runoff from all built-upon 
areas generated from one inch of rainfall, 
unless it is determined that additional 
runoff control measures are required to 
protect the water quality of Outstanding 
Resource Waters necessary to maintain 
e>dsting and anticipated uses of those wa- 
ters, in which case more stringent 
stormwater runoff control measures mav 
be required on a case-b\ -case basis. Ihe 
size of the control system must take into 
account the runoff from any pervious 
surfaces draining to the system. 

Moro stringt ' iit roquiromcntD may be required by 
Ae Ensijonmc ' iital Mancigomcnt CommiuL i ion »» 
a »te opecilio basis. 

(2) Saltwater: Water quality conditions shall 
clearly maintain and protect the out- 
standing resource values of waters classi- 
fied ORW. .Management strategies to 
protect resource values will be developed 
on a site-specific basis dunng the pro- 
ceedings to classify waters as ORW. At 
a minimum, new development will com- 
ply with the low density options as speci- 
fied in the Stonnwater Runoff Disposal 
rules \\^ NCiVC 5H .10( l .l(a)(2)| |15A 
NCAC 2H .1003(a)(2)| within 575 feet of 
the mean high water line of the designated 
ORW area. New non-discharge permits 
win be required to meet reduced loading 
rates and increased buffer zones, to be 



determined on a case-by-case basis. No 
dredge or fill activities will be allowed 
where significant shellfish or submerged 
aquatic vegetation bed resources occur, 
except for maintenance dredging, such as 
that required to maintain access to exist- 
ing channels and facilities located within 
the designated areas or maintenance 
dredging for activities such as agriculture. 
A pubhc hearing is mandatory for any 
profxjsed permits to discharge to waters 
classified as ORW. 
Additional actions to protect resource values will 
be considered on a site specific basis during the 
proceedings to classify waters as ORW and will 
be sp)ecified in Paragraph (e) of this Rule. These 
actions may include anUhing within the powers 
of the Commission. The Commission will also 
consider local actions which have been taken to 
protect a water body in determining the appro- 
priate state protection options. Descriptions of 
boundaries of waters classified as ORW are in- 
cluded in Paragraph (e) of this Rule and in the 
Schedule of Classifications ( 1 5A NCAC 2B .0302 
through .0317) as specified for the appropriate 
nver basin and wiU also be described on maps 
maintained by the Division of Environmental 
Management. 

(d) Petition Process. Any person may petition 
the Commission to classify a surface water of the 
state as an ORW. The petition shall identify the 
exceptional resource value to be protected, ad- 
dress how the water body meets the general cri- 
teria in Paragraph (a) of this Rule, and the 
suggested actions to protect the resource values. 
The Commission may request additional sup- 
porting information from the petitioner. The 
Commission or its designee will initiate public 
proceedings to classify waters as ORW or wiU 
inform the petitioner that the waters do not meet 
the criteria for ORW with an explanation of the 
basis for this decision. The petition should be 
sent to: 

Director 

DEHNR Division of Environmental 

Management 

P.O. Box ¥m^ 29535 

Raleigh, North Carohna 27611 76^.7 

27626-0535 

The envelope containing the petition should 

clearly bear the notation: RLEE-\EAKING 

PETrnON EOR ORW CLASSIEICATION. 

(e) Listing of Waters Classified ORW with 
Specific Actions. Waters classified as ORW with 
specific actions to protect exceptional resource 
\alues are listed as foUows: 

(1) Roosevelt Natural Area [White Oak Ri\er 
Basin, Index Nos. 20-36-9. 5-(l) and 



522 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



20-36-9. 5-(2)l including all fresh and saline 
waters within the property boundaries of 
the natural area will have only new devel- 
opment which complies with the low 
density option in the stormwater rules as 
specified in 15A NCAC 2H .1003(a)(2) 
within 575 feet of the Roosevelt Natural 
Area (if the development site naturally 
drains to the Roosevelt Natural Area). 

(2) Chattooga River ORW Area (Little 
Tennessee River Basin and Savannah 
River Drainage Area): the following un- 
designated waterbodies that are tributary 
to ORW designated segments shall com- 
ply with Rule .0216(c) of this Section in 
order to protect the designated waters as 
per Rule .0203 of this Section. However, 
expansions of existing discharges to these 
segments will be allowed if there is no in- 
crease in pollutant loading: 

(A) North and South Fowler Creeks, 

(B) Green and Norton MUl Creeks, 

(C) Cane Creek, 

(D) Ammons Branch, 

(E) Glade Creek, and 

(F) Associated tributaries. 

(3) Henry Fork ORW Area (Catawba River 
Basin): the following undesignated 
waterbodies that are tributary to ORW 
designated segments shall comply with 
Rule .0216(c) of this Section in order to 
protect the designated waters as per Rule 
.0203 of this Section: 

(A) Ivy Creek, 

(B) Rock Creek, and 

(C) Associated tributaries. 

(4) In the following designated waterbodies, 
no additional restrictions will be placed 
on new or expanded marinas. The only 
new or expanded NPDFS permitted dis- 
charges that wUl be allowed wiU be non- 
domestic, non-process industrial 
discharges. 

(A) The Alligator River Area (Pasquotank 
River Basin) extending from the source 
of the Alligator River to the U.S. High- 
way 64 bridge including New L^e Fork, 
North West Fork Alhgator River, Juniper 
Creek, Southwest Fork Alligator River, 
Scouts Bay, Gum Neck Creek, Georgia 
Bay, Winn Bay, Stumpy Creek Bay, 
Stumpy Creek, Swann Creek (Swann 
Creek Lake), Whipping Creek (Whipping 
Creek Lake), Grapevine Bay, Rattlesnake 
Bay, The Straits, The Frying Pan, 
Coopers Creek, Babbitt Bay, Goose 
Creek, Milltail Creek, Boat Bay, Sandy 
Ridge Gut (Sawyer Lake) and Second 



Creek, but excluding the Intracoastal 
Waterway (Pungo River- Alligator River 
Canal) and all other tributary streams and 
canals. 
(5) In the Following designated waterbodies, 
the only type of new or expanded marina 
that will be allowed wiU be those marinas 
located in upland basin areas. The only 
new or expanded NPDES permitted dis- 
charges that wiU be allowed will be non- 
domestic, non-process industrial 
discharges. 

(A) The Northeast Swanquarter Bay Area 
including all waters northeast of a line 
from a point at Lat. 35° 23' 51" and Long. 
76° 21' 02" thence southeast along the 
Swanquarter National WildUfe Refuge 
hunting closure boundary (as defined by 
the 1935 Presidential Proclamation) to 
Drum Point. 

(B) The Neuse-Southeast Pamlico Sound 
Area (Southeast Pamlico Sound Area 
(Southeast Pamlico Sound Section of the 
Southeast Pamlico, Core and Back 
Sound Area); (Neuse River Basin) in- 
cluding all waters within an area defmed 
by a line extending from the southern 
shore of Ocracoke Inlet northwest to the 
lar-Pamhco River and Neuse River basin 
boundary, then southwest to Ship Point. 

(C) The Core Sound Section of the South- 
east Pamlico, Core and Back Sound Area 
(Wliite Oak River Basin) including aU 
waters of Core Sound and its tributaries 
but excluding Nelson Bay, the Atlantic 
Harbor Restricted Area and those 
tnbutaries of Jarrett Bay that are closed 
to shellfishing. 

(D) The Western Bogue Sound Section of 
the Western Bogue Sound and Bear Is- 
land Area (Wliite Oak River Basin) in- 
cluding aU waters within an area defmed 
by a line from Bogue Inlet to the main- 
land at SR 1117 to a line across Bogue 
Sound from the southwest side of Gales 
Creek to Rock Point, including Taylor 
Bay and the Intracoastal Waterway. 

(E) The Stump Sound Area (Cape Fear 
River Basin) including all waters of Stump 
Sound and .VUigator Bay from marker 
Number 17 to the western end of 
Pcrmuda Island, but excluding Rogers 
Bav, the Kings Creek Restricted Area and 
Mill Creek. 

(F) The Topsail Sound and Middle Sound 
Area (Cape Fear River Basin) including 
all estuarine waters from New Topsail In- 
let to Ma-son Inlet, including the Intra- 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



523 



PROPOSED RULES 



coastal Watenvay and Howe Creek, but 
excluding Pages Creek and Futch Creek. 
(6) In the following designated waterbodies, 
no new or expanded NPDES permitted 
discharges and no new or expanded 
marinas will be allowed. 

(A) The Swanquarter Bay and Juniper Bay 
Area (Tar-Pamlico River Basin) including 
ail waters within a line beginning at 
Juniper Bay Point and running south and 
then west below Great Island, then 
northwest to Shell Point and includmg 
Shell Bay, Swanquarter and Juniper Bays 
and their tnbutaries, but excluding all 
waters northeast of a line from a point at 
Lat. 35= 23' 51" and Long. 76' 21' 02" 
thence southeast along the Swanquarter 
National Wildlife Refuge hunting closure 
boundary (as defined by the 1935 Presi- 
dential Proclamation) to Drum Pomt and 
also excluding the Blowout Canal, 
Hydeland Canal, Juniper Canal and 
Quarter Canal. 

(B) The Back Sound Section of the South- 
east Pamlico, Core and Back Sound .-Vrca 
(WTiite Oak River Basin) including that 
area of Back Sound extending from Core 
Sound west along Shackleford Banks, 
then north to the western most point of 
Middle Marshes and along the northwest 
shore of Middle .Marshes (to include all 
of Middle .Marshes), then west to Rush 
Point on Marker's Island, and along the 
southern shore of Markers Island back to 
Core Sound. 

(C) The Bear Island Section of the Western 
Bogue Sound and Bear Island .\rea 
(White 0;ik River Basin) including all 
waters within an area defmed by a line 
from the western most point on Bear Is- 
land to the northeast mouth of Goose 
Creek on the mainland, east to the south- 
west mouth of Queen Creek, then south 
to green marker No. 49, then northeast to 
the northern most point on Huggins Is- 
land, then southeast along the shoreline 
of Huggins Island to the southeastern 
most fxjint of Huggins Island, then south 
to the northeastern most point on Dudley 
Island, then southwest along the shoreline 
of Dudley Island to the eastern tip of Bear 
Island. 

(D) The Masonboro Sound .Area (Cape 
Fear River Basin) including all waters be- 
tween the Barrier Islands and the main- 
land from Carolina Beach Inlet to 
Masonboro inlet. 



Statutory Authority G.S. 143-214.1 . 

1\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the DEM-Ground\'^ater Section 
intends to adopt rule(s) cited as 15A NC.iC 2P 
.0/01 - .0103, .0201 - .0202, .0301 - .0302. .0401 
- .0407. 

1 he proposed effective date of this action is No- 
vember I, 1992. 

1 he public hearing will be conducted on the fol- 
lowing dales and locations: 

SEW BER.X 



July 7, 1992 

7:00 p.m. 

Superior Court, 2nd Floor 

Craven County Courthouse 

RALEIGH 

July 9. 1992 

y':00 p.m. 

Ground Floor Hearing Room 

Archdale Building 

512 \. Salisbury Street 

ll/CKOR Y 

July 13, 1992 

7:00 p.m. 

.■\ uditorium 

Catawba Valley 

Community College 

J\eason for Proposed Action: The proposed 
rules enable the operation of the commercial and 
non-commercial leaking petroleum underground 
storage tank cleanup funds. The rules set forth 
conditions and procedures for reimbursement of 
cost for environmental damage cleanup, bodily in- 
jury, or property damage resulting from the re- 
lease of petroleum from an underground storage 
tank. Rules for the collection of annual fees are 
also included. 



Co 



omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted through July 15, 
1992. Please submit comments to Mr. David 
Hance, Division of Environmental Management, 
Groundwater Section, P.O. Box 29535, Raleigh, 
.VC 27626-0535, (919) 733-3221. Please notify 
Mr. Hance prior to the public hearing if you desire 



524 



:6 NORTH CAROLn\A REGISTER June 15, 1992 



PROPOSED RULES 



to speak. Oral presentation lengths may be lim- 
ited depending on the number of people that wish 
to speak at the public hearing. 

IT IS VERY IMPORTANT THAT ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PER- 
SONS, GROUPS, BLSINESSES, ASSO- 
CIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOW^ 
TO THE DEPARTMENT THROUGH THE PUB- 
LIC HEARING AND COMMENT PROCESS, 
WHETHER THEY SUPPORT OR OPPOSE ANY 
OR ALL PROVISIONS OF THE PROPOSED 
RULES. 

r iscal Note: These Rules affect the expenditures 
or revenues of local funds . A fiscal note was sub- 
mitted to the Fiscal Research Division on May 6, 
1992, OSBM on May 6. 1992, N.C. League of 
Municipalities on May 7, 1992, and N.C. Associ- 
ation of County Commissioners on May 7, 1992. 

SUBCHAPTER 2P - LEAKING PETROLEUM 

UNDERGROUND STORAGE TANK CLEANUP 

FUNDS 

SECTION .0100 - GENERAL CONSIDERATIONS 

.0101 GENERAL 

(a) The purpose of this Subchapter is to es- 
tablish criteria and procedures for the reimburse- 
ment of costs incurred by owners and operators 
from the L caking I'etn^leum Lnderground Stor- 
age Tank Cleanup Funds. 

(b) The Groundwater Section of the Division 
of En\ironmental Management of the Depart- 
ment of l-'nvironment, Health, and Natural Re- 

shall 



administer the 



Commercial and 
Tank 



sources 

Noncommercial L nderground Storage 

Cleanup I'unds for the State of North Carolina. 

(c) Staff of the Division of I'nvironmental 
Management shall conduct mspections and re- 
view records as necessary to assure compliance 
with this Subchapter. 

(d) As authonzed bv G^ 143-21 5.94G, the 
Department mav engage in cleanup work it 
deems appropnate and pay the costs from the 
Noncommercial I'und in accordance with G.S. 
143-215. 'JaD. 

(e) The Department may engage in investi- 
gations and cleanups in accordance with a prior- 
ity rankmg system and the availability of 
resources as determined bv the Division. 



(a) Copies of applicable sections of Subchapter 
2N of Title 15A, North Carolina Administrative 
Code incorporated by reference in tliis Subchap- 
ter, including any subsequent amendments and 
editions, are available for public mspection at 
Department of Hnvironmcnt, Health, and Na- 
tural Resources Regional OlTices. Ihey are: 

( 1) Asheville Regional Office, Interchange 
Building, 59 Woodrm Place, Asheville, 
North Carolma 28801; 

(2) Winston-Salem Regional Office, Suite 100, 
8025 North Point Boulevard, Wmston- 



01 



lii 



Salem, North Carolina 27106; 
Mooresville Regional Office, 919 North 
Main Street, Mooresville, North Carolina 
28115; 



Raleigli Regional Office, 3800 Barrett 
Drive, Post Office Box 27687, Raleitih, 
North Carolina 2761 1; 



(5) Payetteville Regional Office, Wachovia 



Building, Suite 714, 
Carolina 28301 



FavettevLlle_^ North 



1^ 



Washington Regional Offi 
Carolina Avenue, Farish 



ice. 



1424 

Building, 



Washington, North Carolma 27889; 

(7) Wilmmgton Regional Office, 127 Cardinal 

Dnve Extension, Wilmington, North 

Carolina 28405. 



(b) Ct)pies of such regulations can be made at 
these regional offices for ten cents ($0.10) per 
page. 

Statutory Authoritv G.S. 12-3.1 (c); 143-2I5.94E; 
143-2I5.94L. 

.0103 FALSE OR MISLEADING 
INFORMATION 

Any owner or operator or authorized agent who 
knowingly submits any false or misleading infor- 
mation with regard to these Rules may be con- 
sidered to be contributing to a discharge. 



interfering with the mitigation of a discharge, or 
preventing the early detection of a discharge 
pursuant to OS, 143-215.94h:(g)( 1) if the false 
or misleading information results in delay ot any 
efforts to stop the release or discharge, results in 



delay of detection of any portion of the discharge 
or release, or results in delay of investigatory' or 
remedial activities. 



Statutory Authority G.S. I43-2I5.94E; 
I43-215.94L. 



Statutory Authority G.S. 
I43-2/5.94G; 143-2J5.94L. 



I43-215.94E; 



.0102 COPIES OF RULES 

INCORPOR VFED BY REFERENCE 



SECTION .0200 - PROGRA.VI SCOPE 

.0201 APPLICABILITY 

(a) This Subchapter shall apply to the dis- 
bursement of funds from the Commercial Leak- 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



525 



PROPOSED RULES 



ing Petroleum Underground Storage Tank 
Cleanup t und and Noncommercial Leaking Pe- 
troleum Underground Storage 1 ank Cleanup 
[und. and to the collection of annual operating 
fees. 

(b) \n\ portions of this Subchapter which 
concern annual tank operating fees apply to all 
owners and operators of Commercial I'nder- 
ground Storage Tanks that ha\'e been in use in 
North Carolina on or after Januar\ 1. 1989. 



ic) Ihis Subchapter shall apph to discharges 
or releases from noncommercial or commercial 
underground storage tank s\'stems, regardless of 
whether such svstems are regulated under Sub- 



chapter 2N of Title 15 A. of the North Carolina 
Administrative Code. 



Statutorv A ulhority 
143-215.94L. 



G.S. 



143-2I5.94E: 



.0202 DEFINITIONS 

(a) The definitions for "Criteria and Standards 
Applicable to L nderground Storage Tanks" 
contained in 15.A NC.VC 2N .02i)3 are hereby 
incorporated by reference including subsequent 
amendments and editions, except that for the 
purposes of this Subchapter, the defmition of 
"Underground Storage Tank" shall be as dellned 
in Subparagraph (b)( 12) of this Rule. 

(b) The following terms are detined for use in 
this Subchapter: 

( 1 ) "Annual operating fee" is an annual fee 
required to be paid to the Department by 
the owner or operator of each commercial 
underground storage tank m use on or af- 
ter 1 January' of the \ear. beginning with 
1989. 

(2) "Commission" means the Fn\ironmental 
Management Commission as organized 
under Chapter 143B of the General Stat- 
utes. 

(3) "Department" means Department of En- 
yironment. Health, and Natural Re- 
sources. 

(4) "Discpyered release" means a release 
which an ouner or operator, or its em- 
ployee or agent, has been made aware of, 
has been notit'ied of. or has a reasonable 
basis for knowing has occurred. 



(5) "Dual usage tank" means an underground 
storage tank which could be considered 
both a commercial underground storage 
tank and a noncommercial underground 
storage tank and for which both the com- 
mercial and the noncommercial usages are 
integral to the operation or existence of 
the tank. 



iM 



"Household" means a permanent struc- 
ture, whether free-standmg or connected 
to other units, used for Ii\ing, where pri- 
mar,' li\ing space and pnmary food prep- 
aration facilities are controlled or 



mamtained 



h^ the 



residents. 



"Household" mcludes single-family 



01 



tii 



houses, apartments, and single Ining 
units, whether or not the residents are re- 
lated to each other. "Household" does 
not mclude dormitories, hospitals, hotels, 
motels, apartment buildings (as distinct 
from the mdnidual apartments therein), 
or other multiple dwelling structures. The 
term "four or fewer households" shall re- 
late to underground storage tanks sert'ing 
households only 

"CJccurrence" means one or more 
release(s) that result(s) in a single plume 
of sod, surface water, and or groundwater 
contamination (consistmg of free product 
and or dissohed contaminants exceeding 
standards specified m 15.A NC.AC 2L or 
any other apphcable laws, rules or regu- 
lations) emanatmg from a gi\en site. 

"Reasonable and necessar\' expendi- 
tures" means expenditures for cleanup 
work performed m accordance with ap- 
phcable en\ironmental laws and regu- 
lations and which is essential in 
determining the extent of contamination, 



in conducting release response or remedi- 
ation, or which compensates third parfies 
for resulting boddy miur\' and property 
damage. The Commission shall consider 
such expenditures reasonable and neces- 
sary to the extent that the\' are sufticicntlv 
documented, are performed in an efficient 
manner considenng comparable costs for 
labor, equipment, and materials, and uti- 
lize cost-etficient methods. 
(9) "Substantise lavy. rule, or regulation" 
shall mean ans' law, rule, or regulation re- 
quiring an owner or operator to perform 
any act necessary and essential m pre- 
venting discharges or releases, in facilitat- 
ing their earh" detection, and in mitigating 
the impact of discharges or releases. 

"Tank m operation" means an under- 
ground storage tank into which product 
is added or from which product is re- 
mo\'ed for purposes other than closure. 

"d ank in use" means an underground 
storage tank intended for the containment 



(10 



11) 



or dispensing of petroleum product. 
(12) Underground storage tank", as used m 
this Subchapter means any Commercial 
or Noncommercial I nderground Storage 



526 



:6 \ORTH CAROLINA REGISTER June L\ 1992 



PROPOSED RULES 



Tank as defined in G.S. 143-21 5.q4A. A 
dual usage tank is considered to be a 
Commercial undertjound storage tank. 



Statutory A uthority 
I43-2I5.94L. 



G.S. I43-2I5.94E; 



SECTION .0300 - ANNUAL OPKRATING FEES 

.0301 FEES AND PAYMENT 

(a) The owner or operator of each commercial 
underground storage tank shall pay all annual 
tank operating fees due for that underground 
storage tank. 

(b) The Division shall send an invoice, for the 
amount of the annual operating fees due, to the 
owner or operator of any commercial petroleum 
underground storage tank in use on January j_ of 
the vear and which has been registered with the 
Department. I he annual operating fee shall be 
due and payable 31) days following the date of the 
invoice and shall be submitted to the Division 
accordindv. 



(c) Any owner or operator not receiving an 
Invoice for annual operating fees shall still pay 
any fees due according to the following schedule: 
ill If lil£ owner or operator has paid annual 
operating fees for the subject tank in pre- 
vious years, the payment will be submit- 
ted to the Division within 30 days of the 
anniversary' of the last invoicmg date for 
the fees. 

If the owner or operator has not previ- 
ously paid annual operating fees for the 
subject tank, any annual operating fee is 
due on J_ January' of that year and shall 
be submitted to the Division accordingly. 



(21 



(d) Any commercial underground storage tank 
(except commercial underground storage tanks 
not regulated under 15A NC.AC 2N) which was 
in operation on or after I])ecember 22, 1*^88 and 
has not been permanently closed in accordance 
with 15A NCAC 2N .0800 is considered to be in 
use. 

(e) Any annua 
January 1 



operating fee due on or after 

19'-*2, that is not paid within 30 days 



of the due dale shall be subject to a late penalty 
of five dollars ($5.00) per day U2 to an amount 
equal to the original fee. I'he late penalty will 
be assessed based on the date of receipt of fee 
payment by the Division. 

(f) All annual operating fees due for any \ear 
are assessed in accordance with the schedule of 



have been paid in accordance with Paragraph (a) 
of this Rule. 

(g) In the event that an annual operating fee 
\\'as paid for a tank for which a fee was not re- 
quired, a refund of that fee payment may he re- 
quested by the owner or operator. Ihc owner 
or operator must provide adequate documenta- 
tion that the tank was exempt from the require- 
ment to pay the annual operating fee. 



Statutory Authority 
I43-2I5.94L. 



G.S. I43-2I5.94E; 



.0302 NOTIFICATION 

Any person transferring ownership of a com- 
mercial underground storage tank shall provide 
wntten notification to the Division of this action 
within 30 days of the date of transfer. I liis no- 
tification must indicate the following: 

( 1) Name and address of the previous owner 
and the new owner; 

(2) .Name, identification number, and street 
address of the facility; 

(3) Date of transfer; 

(4) Signatures of the transferring owner and the 
new owner or their authorized represen- 
tatives. 

Statutory Authority G.S. /43-2/5.94L; 
143-2I5.94T. 

SECTION .0400 - REIMBl RSEMENT 
PROCEDURE 

.0401 Kl IC;iBIl.ITV OF 0\\"SER OR 
OPERAIOR 

(a) Date of Release: 

( 1 ) An owner or operator of a commercial 
underground storage tank is not eligible 
for reimbursement for costs related to re- 
leases which were discovered pnor to June 
■^0, 1^88. 

(2) An owner or operator of a noncommercial 
underground storage tank is eligible for 
reimbursement for costs without regard to 
the date a release is discovered. 

An owner or operator of a commercial 
underground storage tank, from which a 
release is discovered on or after July \ 
l'^9l_^ is not eligible for reimbursement if 



01 



the tank had been removed from the 
ground more than 120 days prior to the 
date of discovery' of the release. 



(b) An owner or operator of a commercial 
underground storage tank is not elieible tor re- 



fees in etfcct dunng that year. Payment of fees imbursement for costs related to releases if an 
due for a firior year will be at the rate in effect 



during that prior year. It is the responsibility of 
the owner or operator to determine that all fees 



annual operating fees due have not been paid in 
accordance with Rule .030 1 of this Subchapter 
prior to discovery. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



527 



PROPOSED RULES 



(c) An owner or operator of a commercial or 
noncommercial underCTOund storage tank is not 
eligible lor reimbursement of any expended costs 
which are in excess of the amount determined 
reasonable m accordance with Rule .0402, and shall include the following: 



(4) Typical costs or rates of any other neces- 
sary service, labor or expense as deter- 
mined by the Di\ision. 
fb) Expenditures not eligible for reimbursement 



which are not necessan,' in perlorming cleanup 
of environmental damage and in compensating 
third parties for bodily iniury and property dam- 
age, and which are less than any deductible es- 
tablished for the appropriate fund. 

(d) An owner or operator of a commercid or 
noncommercial underground storage tank may 
be reimbursed for ehgible costs only after sub- 
mittal of a written application to the Di\ision, 
on forms provided by the Di\ision, and which 
includes any mformation and documentation 
necessary to detennme eligibiLitv and to deter- 
mine that any expended costs are reasonable and 
necessary. 

(e) An owner or operator of a commercial or 
noncommercial underground storage tank shall 
not be eligible for reimbursement for costs related 
to releases if the owner or operator has willfully 
yiolated any substantive law, rule, or regulation 
apphcable to underground storage tanks intended 
to prevent, mitigate, or facilitate the early de- 
tection of discharges or releases. 

(f) The release response and corrective action 
requirements of an\ rules of the Commission and 
of any statute administered bv the Department 
shall not in any wa\' be construed as limited by, 
or contingent upon, any reimbursement from ei- 
ther the Noncommercial fund or the Commer- 
cial Fund. 



til 



Costs of the removal and disposal of 
noncommercial underground storage 
tanks and contents removed on or after 
July 3^ 1991, and of coinmercial under- 
ground storage tanks and contents re- 
moved on or after January 1, 1992; 



01 



Costs of the replacement of any under- 
ground storage tank, piping, fitting, or 
ancillary equipment; 

(3) Costs mcurred in preparation of any pro- 
posals to perform work for environmental 
cleanup; 

(4) Interest on anv accounts, loans, etc.; 

(5) Expenses charged bv the owner or opera- 
tor in the processing and management of 
a reimbursement application or subse- 
quent claims; 

(6) Attorney's fees; 

(7) Penalties, fees, and fmes assessed by any 
court or agency; 

(S) Loss of profits, fees, and wages incurred 
by the owner or operator: 

(_2l -Any other expenses not specifically related 
to en\ironmental cleanup, or implemen- 
tation of a cost eftective environmental 
cleanup, or third parl\- bodih injury or 
property damage. 

Statutory Authority G.S. I43-215.94B: 
I43-2I5.94D: I43-2I5.94E: I43-215.94L. 



Statutory 
I43-2I5.94L. 



A uthority 



G.S. 



143-215.94E: 



.0402 CLE.WLP COSTS 

(a) In determining whether costs expended bv 
an owner or operator are reasonable and neces- 
sary, the Division shall consider the following: 
( 1) Adequacy and cost-effectiveness of any 
work performed and technical acti\itv 
utilized b\" the owner or operator in per- 



lorming release response, site assessment 
and correctise action. 
(2) I'vpical billing rates of engineering, 
geological, or other en\iromnental con- 



sulting fums pro\iding similar services in 
the -State as determined bv the Division. 
(3) Ivpical rental rates for anv necessary 
equipment as detemiined bv the Division. 
T he amount reimbursed for equipment 
rental shall not exceed the tvpical pur- 
chase price of such equipment. 



.0403 THIRD PARTY CLAIMS 

(a) An owner or operator seeking reimburse- 
ment from the appropnate fund for anv third 
p^irtv claim for bodily iniurv or property damage 
must notify the Division of any such claim. The 
owner or operator must provide the Division 
with all pleadings and other related documents if 
a lawsuit has been fded. 'I he owner or operator 
shall pro\ide to the I^ivision copies of anv med- 
ical reports, statements. in\estigati\e reports, or 
certifications from licensed professionals neces- 
sary to determine that a claim for boddv injury 
or property damage is reasonable and necessary. 

(b) The term third parts bodilv injury means 
specific physical bodily injury proximateh' re- 
sulting from exposure, explosion, or fire caused 
bv the presence of a petroleum release and which 
is incurred bv a person other than the owner or 
operator, or employees or agents ot an owner or 
operator. 

(c) Lhe term third party property damage 
means actual ph\sical damage or damage due to 



528 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



specific loss of normal use of property owned by 
a person other than the owner or operator of an 
underground storage tank from which a release 
has occurred. A property owner shall not be 
considered a third party if the property was 
transferred by the owner or operator of an 
underground storage tank in anticipation of 
damage due to a release. Third party property 
damage shall be reimbursed from the appropriate 
fund based on the rental costs of comparable 
property during the period of loss of use up to a 
maximum amount equal to the fair market value. 
In the case of property that is actually destroyed 
as a result of a petroleum release, reimbursement 
shaU be at an amount necessary to replace or re- 
pair the destroyed property. 

Statutory Authority G.S. 143-215.94B; 
I43-2I5.94D: I43-2I5.94E: I43-2I5.94L. 

.0404 REQUESTS FOR REIMBL RSEMENT 

(a) An application for reimbursement must be 
made on a form provided by the Division. The 
application form must accompany the imtial re- 
imbursement request. 

(b) A request for reimbursement shall include 
copies of any documentation required by the 
Division to determine that expended costs are 
reasonable and necessary. Proof of payment 
must accompany any request for reimbursement, 
except when reimbursement will be made jointly 
to the owner or o,perator and cither a provider 
of sen, ice or a third party claimant. The Division 
may require the owner or operator to submit any 



information required for the purpose of substan- 
tiating any claim for reimbursement on forms 
provided bv the Division. 

(c) A request for reimbursement may be re- 
turned or additional information requested by the 
Division, if r[ is found to be incomplete. 

(d) The Division shall reimburse an owner or 
operator for expenses following completion of 
any significant phase of cleanup work or in ac- 
cordance with the schedule allowed by G.S. 
143-2 15. q4f;(e). 

(e) II any amount appro\ed for reimbursement 
is less than the amount of reimbursement re- 
quested, the Di\ision shall issue a written expla- 
nation of why the amount requested was not 
approved. 



Statutory A uthority 
143-21 5. 94 L. 



G.S. 143-21 5. 94 E: 



.0405 METHOD OF REIMBURSEMENT 

(a) Reimbursement for cleanup costs shall be 
made onh' to an owner or operator of a petro- 



leum underground storage tank, or jointly to an 
owner or operator and a provider of service. 

(b) Reimbursement of cleanup costs to the 
owner or operator shall be made only after proof 
of payment for such costs has been received by 
the Division. 

(c) Joint reimbursement of cleanup costs shaU 
be made to an owner or operator and a pro\ider 
of service only upon receipt of a written agree- 
ment acknowledged by both parties. Any re- 
imbursement check shall be sent directly to the 
owner or operator. 

(d) Payment of third party claims shall be made 
to the owner or operator, or jointly to the owner 
or operator and the third party claimant. 



Statutory Authority 
I43-2I5.94L. 



G.S. I43-2I5.94E; 



.0406 REIMBURSEMENT APPORTIONMENT 

(a) Where multiple occurrences are addressed 
in a smgle cleanup action, expenses will be reim- 
bursed based on apportionment among the oc- 
currences. The method of apportionment wiU 
be as follows: 

( 1) Expenses related directly to a particular 
occurrence shall be applied only to that 
occurrence: 

(2) Expenses that are related to more than one 
occurrence wiU be apportioned eciually 
among the occurrences. 

(b) Where annual operating fees due have not 
been paid on all underground storage tanks con- 



tnbuting to an occurrence, reimbursement will 
be made at a rate equal to the number of tanks 
contributing to the occurrence for which all an- 
nual operating fees due have been paid divided 
by the total number of tanks contnbutmg to the 
occurrence. 



(c) If multiple underground storage tanks at a 
single site are contributing to a single occurrence 
and the tanks are owned or operated by different 
persons, reimbursement may be made to any of 
the owners or operators as if the occurrence \sere 
caused solely by that person's underground stor- 
age tanks. 



Statutory Authority 
/43-2I5.94L. 



G.S. 



I43-2I5.94E; 



.0407 FINAL ACTION 

(a) The Director, or his delegate, shall make a 
final decision on a written apphcation for eligi- 
bility for reimbursement from the appropriate 
fund. The Director, or his delegate, shall make 
a fmal decision on an\ written request for re- 
imbursement made subsequent to an initial ap- 
plication. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



529 



PROPOSED RULES 



(b) An owner or operator who has been denied 
e liability lor reimbursement from the appropn- 
ate fund alter submittal of a written application 
in accordance with the procedures of this Sub- 
chapter, or who has had any wntten reimburse- 
ment request denied after submittal m accordance 
with the procedures of this Subchapter, shall be 
notiiled of the n.ght to petition for a contested 
case in the Uffice of Admimstratiye Hearings in 
accordance with the procedure set out in G S. 
150B-23. 



Statutorv Authority 
143-:i5.Q4L. 



G.S. I43-2I5.94E; 



i<**-k*-k-f:*:k*-k-k-k-k-f:*i:* 



No 



otice is hereby given in accordance \\.ith G.S. 
I SOB- 2 1 .2 that the N.C. Marine Fisheries Com- 
mission intends to adopt rules cited as ISA NCA C 
31 .00/3; 3K .0206; 3M .0S09; 30 .0211 and 
amend rules cited as ISA SCAC 31 .0011; 3J 
.0103, .0107. ,0301; 3M .OSOI, .OS04; 30 .0204 - 
.020S, .0208; 3R .0007 - .0008. 

1 he proposed effective date of this action is Oc- 
tober 1. 1992. 

lublic hearing dates, time and locations: 

Note: Each hearing will be preceded by a public 
meeting to begin at 7:00 p.m. 

July 1, 1992 

7:30 p.m. 

Sew Hanover County Courthouse 

Room 302 

320 Chestnut Street 

Wilmington, A'C 

July 2, 1992 

7:30 p.m. 

Carteret Community College 

Joslyn Hall 

.Arendell Street 

Morchead City, XC 

.July 6, 1992 

7:30 p.m. 

Higlxway Building .A uditorium 

P-l Wilmington Street 

( across from Capital) 

Raleigh, A'C 

July 7, 1992 

7:30 p.m. 



Beaufort County Courthouse 

District Courtroom 

Washington, SC 

July 8, 1992 

7:30 p.m. 

Tyrrell County Courthouse 

Main Street 

Columbia, NC 

July 9, 1992 

7:30 p.m. 

N.C. Aquarium 

Airport Road 

Manteo, AC 



Jjusiness Session: The Marine Fisheries Com- 
mission will conduct a Business Session on July 
24, 1992. starting at 8:30 a.m. to decide on these 
proposed rules. The Marine Fisheries Commis- 
sion will conduct a workshop on July 23, 1992, 
starting at 9:00 a.m. If the Workshop concludes 
early afternoon on the 23rd. the Business Session 
may start at the conclusion of the workshop, in 
sequential order, rather than the scheduled order 
for the morning of the 24th. Both the Workshop 
and the Business Session will be at the Carolina 
Power and Light .Media Center, Southport, North 
Carolina. 



T\.eason for Proposed Action: 

AnOPTIONS 

I5ANC.AC3I .0013 
BIOLOGICAL SAMPLING 

To require persons dealing in seafood to allow 
Division staff to collect biological data. Biological 
sampling is necessary in order to make manage- 
ment decisions on such issues as size limits and 
quotas. 

ISA NCAC 3K .0206 

MECHANICAL HARVKST PERMIT 

REQUIREMENT 

To require a permit for use of mechanical gear 
to harvest oysters. Permit will provide data on 
how many dredges are being used and will allow 
lease har\esters to exceed daily limit for public 
bottom harvest. 

ISA NCAC3M .0509 
TARPON 

To provide protection to a species that is highly 
prized by recreational fishermen and is not utilized 
commercially. 



530 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



ISA NCAC30 .0211 

PROTECTION OF PRIVATE SHELLFISH 

BOTTOM 

To provide protection of private shellfish bottoms 
from bottom disturbing gear for propagation of 
shellfish. 

AMENDMENTS 

I5ANCAC3I .0011 
PERMITS FOR AQLACLLTLRE OPERATIONS 

To require aquaculture facilities allow for in- 
spections of operations prior to and after issuance 
of aquaculture operation permit to insure oper- 
ations are legitimate. 

ISA NCAC3J .0103 

GILL NETS, IDENTIFICATION, 

RESTRICTIONS 

Mandatory attendance of gill nets will signif- 
icantly reduce the number of gill nets set and re- 
duce spoilage when water temperatures are warm. 
Mandatory attendance of gill nets should decrease 
the mortality rates of undersize fish that are taken 
by gill nets and decrease recreational and boating 
conflicts. 

ISA NCAC3J .0107 
POLND NETS 

Limiting the number of pound nets allowed per 
operation will decrease the number of pound net 
sets and open up areas for other uses. 

ISA NCAC 3J .0301 
CRAB, EEL, FISH AND SHRIMP POTS 

Exempting fish pots from the cleanup period at 
the end of January into the first week of February 
will allow fish pots to be fished year-round. 

Allowing some areas of the Pamlico Sound, 
Pamlico River and Neuse Rivers which have not 
been designated for the use of crab pots to be 
proclamated open to crab potting will allow 
potters to use these areas when haulers are not. 
This will probably increase number of pots being 
set which may increase conflicts. 

ISA NCAC 3M .OSOl 
RED DRUM 

Prohibiting the sale of red drum over 20 inches 
will increase the spawning stock and improve the 
age structure of the red drum populations, thereby 
building a more stable and viable population. 

ISA NCAC 3M .0S04 
TROUT 

Proposed amendment will allow for management 
of spotted seatrout by proclamation. Management 
is currently accomplished through size limits and 
proclamation authority for recreational creel lim- 



its. The Fisheries Director, through proclamation, 
could relax or impose restrictions on the harvest 
of spotted seatrout to meet management needs 
and assure healthy populations. 

ISA NCAC 30 .0204 

MARKING SHELLFISH LEASES AND 

FRANCHISES 

To reduce, through clarification of lease and 
franchise holders rights, conflicts between the 
public and shellfish culturists. Should increase the 
use of public trust resources. 

ISA NCAC 30 .0205 
LEASE RENEWAL 

Criteria, as established by G.S . J/3-202, does 
not allow new leases in areas closed because of 
pollution. Amendment to this nde prohibits re- 
newal of leases which are in polluted areas unless 
production requirements can be met through relay 
or other recognized means. 

ISA NCAC 30 .0208 
CANCELLATION 

To require initiation of cancellation proceedings 
for leases where lease holders prohibit public trust 
use in order to protect public trust rights. 

ISA NCAC 3R .0007 
DESIGNATED POT AREAS 

Allowing some areas of the Pamlico Sound, 
Pamlico River and Neuse Rtiers which have not 
been designated for the use of crab pots to be 
opened by proclamation to crab potting will allow 
potters to use these areas that are not being used 
for haul seining. 

ISA NCAC 3R .0008 
MECHANICAL METHODS PROHIBITED 

Clarifies areas where mechanical methods for 
oystering is prohibited; allows for use of mechan- 
ical methods in prohibited areas on private bottom 
by permit. 



Co 



-omment Procedures: Comments and state- 
ments, both written and oral, may be presented at 
the hearings. Written comments are encouraged 
and may be submitted to the Marine Fisheries 
Commission, P.O. Box 769, Morehead City, NC 
28557-0769. These written and oral comments 
must be received no later than July 15, 1992. Oral 
presentation lengths may be limited depending on 
the number of people that wish to speak at the 
public hearings. 

CHAPTER 3 - MARINE FISHERIES 

SI BCHAPTER 31 - GENERAL RLLES 

.0011 PERMITS FOR AQLACLLTLRE 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



531 



PROPOSED RULES 



OPERATIONS 

(a) It is unlawful to conduct aquaculture oper- 
ations without fust obtaining a permit from the 
Fisheries Director. Such permit will be issued 
on a calendar year basis. All aquaculture oper- 
ations not required to be permitted by the 
Wildlife Resources Commission must be pennit- 
ted by the Fisheries Director. 

(b) It is unlawful: 

(1) To take fisheries resources from coastal 
waters for aquaculture purposes during 
closed seasons without first obtaining a 
permit from the Fisheries Director. The 
Fisheries Director may impose any or all 
of the following restrictions on the taking 
of fisheries resources for aquaculture pur- 
poses: 

(A) Specify sp)ecies, 

(B) Specify quantity and or size, 

(C) Specify time jDcriod, 

(D) Specify location, 

(E) Specify gear and or vendors, 

(F) Specify other conditions as appropriate. 

(2) To sell, or use for any purpose not related 
to North Carolina aquacultural oper- 
ations, fisheries resources taken under a 
permit issued in accordance with Subpar- 
agraph (b)(1) of this Rule. 

(3) To fail to submit to the Fisheries Director 
an annual report specifsing the amount 
and disjxjsition of fisheries resources col- 
lected under authority of this permit. 

(4) To refuse to allow agents of the Fisheries 
Director to inspect proposed or pcnnitted 
aquaculture operations lor comphance 
with Marine Fishenes rules and pennits. 

(c) FawfuUy permitted shellfish relaying activ- 
ities authorized by 15A NCAC 3K .0103 and 
.0104 are exempt from requirements of this Rule. 



Statutory Authority G.S. 
143B-2S9.4. 



1 13-/34: 113-18: 



.0013 BIOLOGICAL SAMPLING 

It IS unlawful for any licensee under Chapter 
1 13, Subchapter IV, of the General Statutes to 
refuse to allow the Fisheries Director or his 
aaents to obtain biolosdcal data. har\'est mfor- 



mation, or other statistical data necessar\' or 
useful t£ the conservation and manatiement of 
mannc and estuarme resources Irom tish in the 
licensee s possession. Such data shall include, 
but IS not hmited to, species identification, 
length, weidit. age, sex, number, area of catch, 
harvest method, and quantitv of catch. 



Slatuloiy Authority G.S. 113-134; 113-163: 
113-164: II3-IS2. 



SUBCHAPTER 3J - NETS, POTS, DREDGES, 
AND OTHER FISHING DEMCES 

SECTION .0100 - NET RULES, GENERAL 

.0103 GILL NETS, IDENTIFICATION, 
RESTRICTIONS 

(a) The Fisheries Director may, by proclama- 
tion, limit or prohibit the use of gill nets in 
coastal waters, or any portion thereof, and/or 
impose any or all of the following restrictions on 
the use of gill nets: 

( 1) Specify area. 

(2) Specify season. 

(3) Specify gill net mesh length except that the 
mesh length shall not be less than 2 1/2 
inches. 

(4) Specify means methods. 

(5) Specify giU net number and length. 

(b) It is unlawful to use fixed or stationar)' gill 
nets in the Atlantic Ocean or any gill nets in 
internal waters unless such nets are marked by 
attaching to them at each end two separate yel- 
low buoys which shall be of sohd foam or other 
sohd buoyant material no less than five inches in 
diameter and no less than five inches in length. 
Gill nets which are not connected together at the 
top line shall be considered as individual nets, 
requiring two buoys at the end of each individual 
net. Gill nets cormected together at the top line 
shall be considered as a continuous net requiring 
two buoys at each end of the continuous net. 
Any other marking buoys on giU nets shall be 
yellow except that one additional identification 
buoy of any color or any combination of colors 
may be used at either or both ends. The owner 
shall always be identified on a buoy on each end 
either by using engraved buoys or by attaching 
engraved metal or plastic tags to the buoys. Such 
identification shall include one of the following: 

(1) Owner's N.C. motor boat motorboat 
registration number, or 

(2) Owner's U.S. vessel documentation name, 
or 

(3) Owner's last name and initials. 

(c) It is unlawful to use gill nets: 

( 1 ) Within 200 yards of any pound net which 
is in use except in Chowan Ri\er as pro- 
vided in 15A NCAC 3J .0203(7); 

(2) From March 1 through October 31 in the 
Intracoastal Waterway within 150 \ards 
of an\' railroad or highway bridge. 

(d) It is unlawful to use giU nets within 100 feet 
either side of the center line of the Intracoastal 
Waterway Channel south of Quick Flasher No. 
54 in AlUgator River at the southern entrance to 
the Intracoastal Waterway to the South Carolina 



5U 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



line, unless such net is used in accordance with 
the following conditions: 

(1) No more than two gill nets per boat may 
be used at any one time; 

(5> Afty »«*• <*5<»4 must be attended by tbe 
fu' i hcrman from a boat Vrbe ahall at He 

txTTT^ (,'f rrrm^? ttttttt ttttt t vii uy itttttt vi 1 1 ivi 
«-^ j^* ■ ^j^^i 

(2) (^ Any individual setting such nets shall 

remove them, when necessary, in suffi- 
cient time to permit unrestricted boat 
navigation. 

(e) It is unlawful to use drift gill nets in vio- 
lation of 15A NCAC 3J .0101(2)" and Paragraph 
(c) of this Rule. 

(f) It is unlawful to use unattended giii «*et* ef 
block or stop nets in the Atlantic Ocean within 
300 yards of the beach from Beaufort Inlet to the 
South Carolina line from sunset Friday to sunrise 
Monday from Memorial Day through Labor 
Day. 

(g) It is unlawful to use unattended giU nets. 
Gill nets shall be considered attended if the fish- 
ermen is within 100 yards of any part of the net. 



Statutory Authoritv G.S. 113-134; 
113-221; 1438-2894. 



II3-1S2; 



.0107 POUND NETS 

(a) For the purposes of this Rule, a pound net 
and any part thereof, mcludmg stakes, shall be 
defined as a net that has a lead and a pound or 
heart which is designed to trap, gill or enclose 
fish, shrimp or crabs in a confined area where 
they can be reduced to possession. A "set" shall 
include each one lead and a pound or heart or 
stakes which are set m such a manner as to ac- 
commodate such nets. 

(b^ (t*! It is unlawful to use pound or fyke nets 
in internal coastal fishing waters without the 
owner's identification being clearly printed on a 
sign no less than six inches square, securely at- 
tached on an outside comer stake of each such 
net. Such identification must include one of the 
following: 

(1) For pound nets, the pound net permit 
number and the owner's last name and 
initials. 

(2) For fyke nets, the owner's N.C. motorboat 
registration number, the owner's U.S. 
vessel documentation name, or the own- 
er's last name and initials. 

Any pound or fyke net or any part thereof found 
set in internal coastal fishing waters without 
proper identification wLU be in violation and may 
be removed and disposed of in accordance with 
law. 



(c) (fe) It is unlawful to set pound nets, or any 
part thereof except location identification stakes 
at each end of prop>osed new locations without 
first obtaining a Pound Net Permit from the 
Fisheries Director. Within 60 days of appUca- 
tion, the Fisheries Director shall issue a pubhc 
notice of intent to consider issuance of a Pound 
Net Permit for new locations, and may hold 
public meetings and approve or take other action 
which may include the denial of Pound Net Per- 
mits, deemed necessary to avoid potential user 
conflicts and to protect traditional uses of the 
area including construction or use of piers. The 
Fisheries Director's final decision to approve, 
deny or modify the pound net permit application 
may be appealed by requesting in writing, within 
20 days of notice of such action, an administra- 
tive hearing before the Marine Fisheries Com- 
mission. A Pound Net Permit for a new location 
may be issued following evaluation by the 
Fisheries Director and wlU expire 365 days from 
the date of issue. 

(d) fe) It is unlawful to set pound nets in previ- 
ously registered or permitted locations without 
first obtaining a Pound Net Permit for each lo- 
cation from the Fisheries Director. Such permits 
will expire 365 days from the date of issue. 
Failure to obtain a Pound Net Permit annually, 
or abandonment of pound net sets without re- 
moval of all stakes, shall constitute a violation 
and be grounds for refusal of any Pound Net 
Permit. Apphcation for renewal of Pound Net 
Permits must be fdcd not less than ten days prior 
to expiration and wiU not be processed unless 
filed by the prior registrant. When an objection 
to a renewal is filed during the term of the permit, 
the Fisheries Director shall review and may deny 
the permit renewal under the criteria for issuance 
of new Pound Net Permits. Failure to use a 
pound net site within 60 days of issuance of a 
Pound Net Permit shall also constitute a vio- 
lation and be grounds for refusal and or re\oca- 
tion of other Pound Net Permits. It is unlawful 
to abandon a pound net set without removal of 
aU stakes. 

(e) (4) It is unlawful to use a pound net without 
leaving a marked navigational opening of at least 
25 feet at the end of every third pound. Such 
openings shaU be marked with yellow signs at 
least six inches square. 

(f[ (^ It is unlawful to set a pound net, pound 
net stakes, or other related equipment in internal 
coastal fishing waters without yellow light reflec- 
tive tap)e or devices on each pound. I he light 
reflective tajje or devices must be atfixed to a 
stake of at least three inches in diameter on the 
offshore end of each pound, must cover a vertical 
distance not less than 12 inches, and must be 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



533 



PROPOSED RULES 



visible from a \'essel when approached from all 
directions. 

(e) ff| In Core Sound, the Fisheries Director 
shall by proclamation designate areas for the use 
of pound and fyke nets. 

(h) fe-^ In Pamlico Sound, it is unlawful to set 
a pound net, pound net stakes, or any other re- 
lated equipment without radar reflecti\'e metallic 
material and yellow light reflecti\e tape or devices 
on each end of the pound net set. The radar re- 
flective material and the hght reflective tape or 
devices must be affixed to a stake of at least three 
inches in diameter, must cover a vertical distance 
of not less than 12 inches, and must be detectable 
by radar and Light from a vessel when approached 
from all directions. Light reflective tape or de- 
vices may be affixed to the radar reflecti\e mate- 
rial. 

(i) ffe^ The Fisheries Director may, by procla- 
mation, between August 1 and lanuars' 31, re- 
quire escape panels in pound nets and may 
impose any or all of the following restrictions on 
the use of escape panels: 

(1) Specify size, number, and location. 

(2) Specify mesh length, but not more than 
six mches. 

(3) Specify time and or season. 

(4) Specify areas. 

(i) It is unlawful to set more than 15 pound 
nets per operation. Fach pound net shall be a 
maximum ot 250 yards in length mcludmg 
pound. An operation is defined as the crews 
and or boats used m conjunction with the har- 
vest of fish or shnmp from the pound nets. 



Statutorv Authoritv G.S. 
J 13-22/': l43B-289'.4. 



113-134: II3-1S2; 



SECTION .0300 - F'OTS, ORRDGES, .\ND 
OTHER FISHING DEMCES 

.0301 CR.\B, EEL, FISH, .\ND SHRIMP POTS 

(a) It is unlawful to use pots except during time 
periods and in areas specified herein: 

(1) From November 1 through April 30 ex- 
cept that all pots (except fish pots) shall 
be removed from mtemal waters from 
Januar>' 24 through Februar>' 7. The 
Fisheries Director may, by proclamation, 
reopen various waters to the use of pots 
after Januar>' 28 if it is detemiined that 
such waters are free of pots. 

(2) From May 1 through October 31, north 
and east of the Highway 58 Bridge at 
Emerald Isle in areas described in 15A 
NCAC 3R .0007 (a), except that the 
Fisheries Director may, by proclamation, 
designate the areas m W'; . oocking Say de- 



scnbed in 15A NCAC 3R .0007 f4)te)(b2, 
or any part thereof, aft4 adjust dosignatod 
aroao m Long Shoal Ri' .e r for the use of 
pots, dunng tki* timo pcnod. 
(3) From .May 1 through October 31 in the 
Atlantic Ocean and west and south of the 
Highway 58 Bndge at Emerald Isle in 
areas and during time periods designated 
by the Fisheries Director by proclama- 
tion. 

(b) It is unlawful to use pots in any navigation 
channel maintained and marked by State or 
Federal agencies. 

(c) It is unlawful to use pots unless each pot is 
marked by attaching a floating buoy which shall 
be of solid foam or other sohd buoyant material 
and no less than five inches in diameter and no 
less than five inches in length. Buoys may be of 
any color except yellow. The owner shall always 
be identified on the attached buoy by using en- 
graved buoys or by engraved metal or plastic tags 
attached to the buoy. Such identification shall 
include one of the following: 

(1) owner's N.C. motorboat registration 
number; or 

(2) owner's U.S. vessel documentation name; 
or 

(3) ov\ner's last name and initials. 

(d) Pots attached to shore or a pier shall be 
exempt from (a) (2), (a) (3|, and (c) of this Rule. 

(e) It is unlawful to use shrimp pots with mesh 
lengths smaller than one and one-fourth inches 
stretch or five-eights inch bar. 

(f) It is unlawful to use eel pots with mesh sizes 
smaller than one inch by one-half inch unless 
such pots contain an escape panel that is at least 
four inches square with a mesh size of 1" x 1/2" 
located in the outside panel of the upper chamber 
of rectangular pots and m the rear portion of cy- 
lindrical pots, except that not more than two eel 
pots per fishing operation with a mesh of any size 
may be used to take eels for bait. 

(g) It is unlawful to use crab pots in coastal 
waters unless each pot contains no less than two 
escape rings that are at least 2 5 16 inches inside 
diameter and located in the opposite outside 
panels of the upper ch;imber of the pot. Peeler 
pots with a mesh size less than 11,2 inches shall 
be exempt from the eell escape ring requirement. 
The Fisheries Director may. by proclamation, 
exempt the escape ring requirement dunng the 
period November through .March, and may im- 
pose any or all of the following restrictions: 

( 1 ) Specify areas, and 

(2) SpecLfy time. 

(h) It is unlawful to use more than 150 pots 
per vessel in Newport River. 



554 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(i) Any pots found in violation of tliis Rule or 
15A NCAC 3J .0302 may be removed by marine 
fisheries enforcement officers and disposed of in 
accordance with law. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 1 43 B- 289. 4. 

SUBCHAPTER 3K - OYSTERS, CLAMS, 
SCALLOPS AND MLSSELS 

SECTION .0200 - OYSTERS 

.0206 MECHANICAL HARVEST PERMIT 
REQUIREMENT 

[a] It is unlawful to harvest oysters by the use 
of mechanical methods from public or private 
bottom without first obtainintJ a permit. Permits 
are valid only in the areas, at times, and under 
conditions specified by the Fisheries Director 
based on concerns for other fisheries resources in 
the vicinity of the areas within which such activ- 
ity is permitted. Such permit may impose con- 
ditions and requirements reasonably necessary' 
for management and enforcement purposes. 

(b) The permit will be re\oked or suspended 
under the following conditions: 

( 1) |f any permit holder refuses to provide 
oyster harvest information upon contact 
by ni\ision stall', either by telephone or 
in person, his permit shall be suspended. 
Fennits may be reinstated ten days after 
requested information is provided. 

(2) Upon conviction of violation of marine 
fisheries law, rule, or proclamation in- 
\olving the use of mech;inical methods. 



the owner's permit will be suspended for 
no less than the following time periods: 
first conviction - J_0 days; second con- 
viction within three years - 30 days; third 
conviction within three years - 60 davs: 



Ql 



and upon the fourth conviction within a 
three-year penod, the permit will be per- 
manently revoked. 

I'pon conviction of violation of ISA 
NCAC 3K .0101 or con\'iction of taking 
oysters with the use of mechanical meth- 



ods from coastal waters that are closed by 
proclamation because of pollution, the 
owner's permit will be suspended for 30 
days tor the first conviction, and after the 
second conviction within a three-year pe- 
riod, the permit will be permanently re- 
voked. 
(4) In the event the person makes application 
for a new permit during the period of 
suspension, no new pennit will be issued 
dunng the time specitied in this Rule. |n 
cases of permanent revocation, the mini- 



mum waiting period before application for 
a new permit will be considered is six 
months. Issuance wiU be only after a 
hearing before the Fisheries Director or 
his agent and a finding that issuance of the 
permit will be in the best interest of 
fisheries management. 



Statutory Authority 
143B-289.4. 



G.S. 113-134; 113-182; 



SUBCHAPTER 3M - FINFISH 
SECTION .0500 - OTHER FINFISH 

.0501 RED DRUM 

(a) The Fisheries Director, may by proclama- 
tion, impose any or all of the following re- 
strictions on the taking of red drum: 



(1) 
(2) 
(3) 



(4) 
(5) 



Specify areas. 
Specify seasons. 

Specify quantity. b«t- shall set- oKoood 
poooosoion ef moro than twe fr4* over H 
inohoo total length i» any eft© dayr 
Specify means/methods. 
Specify size, btrt- tfe» minimum sa» cpeo 

« T « ,» j-1 ■- Vi --t 1 1 n J-i t ^^i l^l£^ i t-i --1 ■-> I . 1 iji^lT^iO t j-i t '1 1 

length. 

It is unlawful to sell or offer for sale red 



(b) It is 
drum greater than 20 inches total length. 



(c) fb> It is unlawful to remove red drum from 
any type of net with the aid of any boat hook, 
gaff, spear, gig, or similar device. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; 143B-289.4. 

.0504 TROUT 

(a) Spotted seatrout (speckled trout). 14- » h«- 
lavsful te poGfi e ss r . potlt'd aoatrout l<»s than 4-2 
inch e s m length. The Fisheries Director may, 
by proclamation, impose any or all of the fol- 
lowing restrictions on the taking of spotted 
seatrout: 

( 1) Specify areas. 

(2) Specify .seasons. 

(3) Specify quantity. 

(4) Specify means methods. 

(5) Specify size. 

(b) Weaktish (gray trout). Tfie Fisheries Di- 
rector may, by proclamation, impose any or all 
of the foUowing restrictions on the taking of 
vveakfish: 

(1) Specify areas. 

(2) Specify seasons. 

(3) Specify quantity. 

(4) Specify means/methods. 

(5) Specify size, but not greater than 12 
inches. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



535 



PROPOSED RULES 



Statutorv Authoritv G.S. 113-134; 
113-221': 1438-2894. 



II3-1S2; 



.0509 TARPON 

(a) It is unlawful to sell or offer tor sale tarpon. 

(b) h IS unlawful to possess more than one 
tarpon per person taken in any one day. 

(c) It IS unlawful to take tarpon h\ any method 
other than hook-and-Line. 

Slatutorx' Authorily G.S. 113-134; 113-1S2; 
113-221: I43B-2S9.4. 

SUBCHAPTER 30 - LICENSES, LEASES, AND 
FRANCHISES 

SECTION .0200 - LE.\SES AND FRANCHISES 

.0204 MARKING SHELLFISH LEASES AND 
FRANCHISES 

(a) All shellfish bottom leases, franchises, and 
water column leases shall be marked as follows: 

(1) SheUfish bottom leases and franchises shall 
be marked by: 

(A) Stakes of wood or plastic material at 
least three inches in diameter at the water 
leyel and extending at least four feet above 
the high water mark. The stakes shall be 
firmly jetted or dnven into the bottom at 
each comer. 

(B) Signs displaying the number of the lease 
or franchise and the name of the owner 
printed in letters at least three inches high 
must be firmly attached to each comer 
stake. 

(C) Supplementary stakes of wood or plas- 
tic material, not farther apart than 50 
yards or closer together than 50 feet and 
extending at least four feet above the high 
water mark, must be placed along each 
boundary, except when such would inter- 
fere with the use of traditional navigation 
channels. 

(2) Water column leases shall be marked by 
anchonng two yellow buoys, meeting the 
material and minimum size requirements 
specified in 15A NCAC 3J .0in3(a) at 
each comer of the area or by other means 
as identified and approved by the Marine 
Fisheries Commission in the Management 
Plan. 

(b) Stakes marking areas of management within 
shellfish bottom leases or franchises, as approved 
in the management plan, must conform to Sub- 
paragraph {a){r)(C) of this Rule and may not 
exceed one for each 1,200 square feet. Marking 
at concentrations of stakes greater than one for 
each 1,200 square feet constitutes use of the water 



fishing, 



column and a water column lease is required in 
accordance with G.S. 113-202.1 or G.S. 
113-202.2. 

(c) All areas claimed in filings made pursuant 
to G.S. 113-205 as deeded bottoms through 
oyster grants issued by the county clerk of court 
or as private bottoms through perpetual fran- 
chises issued by the Shellfish Commission shall 
be marked in accordance with Paragraph (a) of 
this Rule, except the sign shall include the num- 
ber of the franchise rather than the number of the 
lease. However, claimed areas not being man- 
aged and cultivated shall not be marked. 

(d) It is unlawful to fail to remove all stakes, 
signs, and markers within 30 days of receipt of 
notice from the Secretary pursuant to Depart- 
mental Rule 15A NCAC IH .0207 that a G.S. 
1 13-205 claim to a marked area has been denied. 

(e) It is unlawful to exclude or attempt to ex- 
clude the public from allowable public trust use 
of navigable waters on shcUfish leases and fran- 
chises including, but not limited to. _ 
huntmg. swunmmg, wadmg and navigation^ 

(f) fe^ f he Division has no duty to protect any 
sheUtish bottom lease, franchise, or water column 
lease not marked in accordance with Paragraph 
(a) of this Rule. 

Statuton- Authoritv G.S. 76-40; 113-134; 
113-IS2; 113-201; 113-202; 113-202.1; 
113-202.2: 113-205; 143B-2S9.4. 

.0205 LEASE RENEWAL 

(a) Lease renewal applications will be provided 
to lessees as follows: 

(1) For sheUfish bottom leases, renewal ap- 
plications will be provided in January of 
the year of expiration. 

(2) For water column leases, renewal apphca- 
tions win be provided at least 90 days 
prior to expiration dates. 

(b) Lease renewal applications shaU be accom- 
panied bv management plans meeting the re- 
quirements of 15A NCAC 30 .0202(b). A fding 
fee of fifty dollars ($50.00) shall accompany each 
renewal application for shellfish bottom leases. 

(c) A survey for renewal leases will be required 
at the apphcant's expense when the Division de- 
termines that the area leased to the renewal ap- 
plicant is inconsistent with the survey on file. 

(d) When it is determined, after due notice to 
the lessee, and after opportunity for the lessee to 
be heard, that the lessee has not complied with 
the requirements of this Section or that the lease 
as issued is inconsistent with this Section, the 
Secretary may decline to renew, at the end of the 
current terms, any shellfish bottom or water col- 
umn lease. The lessee may appeal the Secretaire's 



536 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



decision to the Marine Fisheries Commission 
pursuant to G.S. 113-202(p). 

(e) Pursuant to G.S. 1 13-202(a)(6), the Secre- 
tary is not authorized to recommend approval of 
renewal of a shellfish lease in an area closed to 
shellfishing by reason of pollution. Shellfish 
leases partially closed due to pollution must be 
amended to exclude the area closed to shclifishing 
prior to renewal. For the purposes of tins Para- 
graph, an area will be considered closed to 
shellfishing by reason of pollution when the area 
has been classified as prohibited or has been 
closed for four or more consecutive years prior 
to renewal upon recommendation by the State 
Health Director, except shclUish leases in areas 
which ha\e been closed for four or more \cars 
and continue to meet estabUshed production re- 
quirements by sale of shellfish through relay pe- 
riods or other recoiznized means shall not be 
considered closed due to pollution for renewal 
purposes. 

jj} f*»f If the Secretary declines to renew a lease 
that has been determined to be inconsistent with 
the standards of this Section, the Secretary, with 
the agreement of the lessee, may issue a renewal 
lease for all or part of the area previously leased 
to the lessee that contains conditions necessary 
to conform the renewal lease to the minimum 
requirements of this Section for new leases. 

Statutory' Authority G.S. 113-134: 113-201; 
113-202: 113-202.1; 1438-289.4; 

.0208 CANCELLATION 

(a) In addition to the grounds established by 
G.S. 113-202, the Secretary will begin action to 
terminate leases and franchises for failure to 
produce and market oysters and /or clams at the 
following rate: 

(1) For shellfish bottom leases and franchises, 
25 bushels per acre per year. 

(2) For water column leases, 100 bushels per 
acre per year. 

These production and marketing rates will be 
averaged over the most recent three-year period 
after January 1 following the second anniversary 
of initial bottom leases and recognized franchises 
and throughout the terms of renewal leases. For 
water column leases, these production and mar- 
keting rates wiU be averaged over the first five 
year period for initial leases and over the most 
recent three year period thereafter. 

(b) Action to terminate a shellfish franchise 
shall begin when there is reason to believe that 
the patentee, or those claiming under him, have 
done or omitted an act in violation of the terms 
and conditions on which the letters patent were 
granted, or have by any other means forfeited the 



interest acquired under the same. The Division 
shall investigate all such rights issued in 
perpetuity to determine whether the Secretary 
should request that the Attorney General initiate 
an action pursuant to G.S. 146-63 to vacate or 
annul the letters patent granted by the state. 

(c) Action to terminate a shellfish lease of 
franchise shall begin when the Fisheries Director 
has cause to beheve the holder of private shellfish 
nghts has encroached or usurped the legal rights 
of the public to access pubfic trust resources in 
navigable waters. 

(d) (-6-^ In the event action to terminate a lease 
is begun, the owner shall be notified by registered 
mail and given a period of 30 days in which to 
correct the situation. Petitions to review the 
Secretary's decision must be filed with the Office 
of Administrative Hearings consistent with the 
provisions of 26 NCAC Chapter 3. 

(e) (4^ The Secretary's decision to terminate a 
lease may be appealed to the Marine Fisheries 
Commission by the owner as provided in G.S. 
113-202(p). 

Statutory Authority G.S. 113-134; 113-201; 
113-202; 113-202.1; 113-202.2; 143B-289.4. 

.021 1 PROTECTION OF PRIVATE SHELLFISH 
INTEREST 

It IS unlawful to use any bottom disturbing 
fishing gear on any shellfish lease or franchise 
unless it is has been duly authonzed bv the 
fisheries Director. 



Statutory Authority G.S. 
II 3- 20 f. 



113-134; 113-182 



SLBCHAPTER 3R - DESCRIPTIVE 
BOLNDARIES 

.0007 DESIGNATED POT AREAS 

(a) As referenced in 15A NCAC 3J .0301, it is 
unlawful to use pots north and east of the High- 
way 58 Bridge at Emerald Isle from .May 1 
through October 31, except in areas described 
below: 

(1) In Albemarle Sound and tributaries. 

(2) In Roanoke Sound and tributaries. 

(3) In Croatan Sound and tributaries. 

(4) In Pamlico Sound and tnbutaries, except 
the following areas and areas further de- 
scnbed in Paragraphs (5), (6), and (7) of 
this Rule: 

(A) (*t^ In \V\socking Bay: 

(i) Bound by a line beginning at a point 
on the south shore of I one Tree Creek 
35° 25' 05" N - 76° 02' 05" W running 
239° (M) 1000 yards to a point 35° 24' 
46" N - 76° 02' 32" W; thence 336° (M) 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



537 



PROPOSED RULES 



2200 yards to a point 35° 25' 42" N - 
76° 03' 16" W; thence 062° (M) 750 
yards to a point on shore 35° 25' 54" 
N - 76° 02' 54" W; thence following the 
shoreLLne and the Lone Tree Creek pri- 
mar>' nursery area Line to the beginning 
point; 
(ii) Bound by a line beginning at a point 
on the south shore of Mt. Pleasant Bay 
35° 23' 07" N - 76' 04' 12" \V running 
083° (M) 1200 yards to a point 35° 23' 
17" N - 76° 03' 32" W; thence 023° (M) 
2400 yards to a point 35° 24' 27" N - 
76° 03' 12" W; thence 299° (M) 1100 
yards to a point on shore 35° 24' 38" 
N - 76° 04' 48" W; thence following the 
shoreline and the Browns Island and 
Mt. Pleasant Bay primary nursery area 
line to the beginning ix)int; except pots 
may be set no more than 50 yards from 
the shoreline. 

(B) fbf In Juniper Bay bound by a line be- 
ginning at a point on Juniper Bay Point 
35° 20^" 18" N - 76° 13' 22" W running 
275° (M) 2300 yards to a point 35° 20' 15" 
N - 76° 14' 45" W: thence 007° (M) 2100 
yards to Daymarker No. 3; thence 040° 
(M) 1100 yards to a point on shore 35° 
21' 45" N '- 76° 14' 24" W; thence fol- 
lowing the shoreline and the Buck Creek 
primary nursery area line to the beginning 
point. 

(C) fei In Swanquarter Bay, bound by a line 
beainning at a point on the north shore 
of Caffee Bay 35° 21' 57" N - 76° 17' 44" 
W; runnins 191= (M) 800 yards to a point 
on the somh shore 35° 21' 35" N - 76° 17' 
45" W; thence following the shoreline to 
a point on shore 35° IV 37" N - 76° 18' 
22" W; thence running 247° (M) 1300 
yards to a point 35° 21' 17' N - 76° 19' 
03" W; thence 340° (M) 1350 yards to a 
point 35° 21' 51" N - 76° 19' 27" W; 
thence 081° (M) 1 150 yards to a point on 
the north shore 35° 22' 02" N - 76° 18' 48" 
W; thence following the shoreline and the 
primary nursery area line to the beginning 
point. 

(D) <r-M In Deep Coye east of a hne begin- 
ning at a point on the south shore 35° 20' 
33" N - 76° 22' 57" W, running 021° (M) 
1800 yards to a point on the north shore 
35° 21' 55" N - 76° 22' 43" W and west 
of a hne beginning at a point on the south 
shore 35° 20' 44" N - 76° 22' 05" W run- 
ning 003° (M) 1400 yards to a point on 
the north shore 35° 2l' 26" N - 76' 22' 1 1" 
W. 



(E) ^ In that area bound by a line begin- 
ning at Beacon No. 1 at the mouth of 
Deep Coye running 314° (M) 1400 yards 
to a pomt on shore 35° 20' 12" N - 76° 
24' 18" W; thence 206° (M) 3250 yards to 
a point 35° 18' 40" N - 76° 24' 54" W; 
thence 128° (M) 2000 yards to a point 35° 
18' II" N - 76° 23' 51" W; thence 015° 
(M) through the "Dope Boat" Beacon 
3250 yards to the beginning point. 

(F) ff^ Off Striking Bay bound by a line be- 
ginning at a point on the west shore of 
Striking Bay 35° 23' 20" N - 76° 26' 59" 
W running 190° (M) 1900 yards to a point 
35° 22' 23" N - 76° 27' 00" W; thence 097° 
(M) 900 yards to Beacon No. 2; thence 
127° (M) '1600 yards to a point 35° 21' 55" 
N - 76° 25' 43" W; thence foUowing the 
shoreline to a point 35° 22' 30" N - 76° 
25' 14" W; thence 322° (M) 2200 yards to 
a pomt 35° 23' 17" N - 76° 26' 10" W; 
thence following the shoreline to a point 
35° 23' 19" N - 76° 26' 24" W; thence 335° 
(M) 900 yards to a pomt 35° 23' 40" N - 
76° 26' 43" W; thence 059° (M) 500 yards 
to a point 35° 23' 30" N - 76° 26' 58" W; 
thence following the shoreline to the be- 
ginning point. 

(G) (g^ In Rose Bay bound by a line begin- 
ning at a point southwest of Swan Point 
35° 23' 56" N - 76° 23' 39" W running 
288° (M) 1500 yards to a point on shore 
35° 24' 03" N - 76° 24' 33" W; thence 162° 
(M) 1650 yards to a point 35° 23' 19" N - 
76° 24' 04" W; thence 084° (M) 1350 yards 
to a point on shore 35° 23' 29" N - 76° 
23' 17" \V; thence foOowing the shoreline 
to the beginning pnamt. 

(Ill (-1*) In Spencer Bay bound by a line be- 
ginning at a point on shore at Willow 
Point 35° 22' 26" N - 76° 28' 00" W run- 
ning 059° (M) 1700 yards to a point 35° 
22' 57" N - 76° 27' 13" W; thence 317° 
(M) 1500 yards to a point 35° 23' 25" N - 
76° 27' 57" W; thence 243° (Mj 1300 yards 
to a point on shore 35° 23' 02" N - 76° 
28' 35" W; thence following the shoreline 
to the beginnmg p>omt. 

(_!} (H In Big Porpoise Bay bound by a line 
beginning at a point on shore 35° 15' 58" 
n"- 76° 29' 10" W running 182° (M) 750 
yards to Sage Point 35° 1 5' 36" N - 76° 
29' 06" W; thence 116' (M) 850 vards to 
a pomt 35° 15' 28" N - 76° 28' 36" W; 
thence 023° (M) 700 yards to a point on 
shore 35° 15' 48" N - 76° 28' 30" W; 
thence following the shorehne to the be- 
ginning point. 



538 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(J) (j^ In that area north of the target ship 
beginning at a point 35° 14' 25" N - 76° 
27' 05" W; running 071° (VI) 2000 yards 
to a point 35° 14' 52" N - 76° 26' 00" W; 
thence 168° (M) 1800 yards to a point 35° 
14' 03" N - 76° 25' 39" W; thence 273° 
(M) 2000 yards to a point 35° 13' 57" N - 
76° 26' 55" W; thence 350° (M) 1000 
yards to the beginning point. 

(K) (k) In Middle Bay-Jones Bay area 
bound by a line beginning at Middle Bay 
Point 35° 14' 49" N - 76° 28' 41" W run- 
ning 131° (M) 3550 yards to a point 35° 
13' 51" N - 76° 26' 53" W; thence 214° 
(M) 2600 yards to a point 35° 12' 43" N 

- 76° 27' 34" W; thence 291° (M) 2700 
yards to Sow Island; thence 181° (M) 
2350 yards to a point 35° 11' 51" N - 76° 
28' 57" W; thence 254° (M) 2000 yards to 
Red Daymarker No. 4; thence 024° (M) 
3600 yards through Green Flasher No. 5 
to Sow Island Point 35° 13' 09" N - 76° 
29' 28" W; thence following the shoreline 
of Middle Bay to Big I'ishing Point 35° 
14' 02" N - 76° 29' 52" W; thence 008° 
(M) 1100 yards to a point on the north 
shore 35° 14' 33" N - 76° 29' 52" VV; 
thence following the shoreline to a point 
35° 14' 46" N - 76° 29' 14" W. th e nc e Re 
moro than ?4 yardo from t4te ohoroLino te 
tfee beginning point. 

(L) (4^ In Jones Bay bound by a line begin- 
ning at a point eft Sew h i kind Point ^^ 
«_(^X-;i4^^a^3iPW running 304^ 
fM^ 3400 yards te (iroL ' n I'lur . hor rver ^ 
thonoo ^^^^ f44+ i4m vaftk te a pewt- 35° 
12' 48" N - 76° 30' 58" W; thence 217° 
(M) 1200 yards to a point on shore 35° 
12' 20" N - 76° 31' 16" W; thence follow- 
ing the shoreline to a point 35° 12' 36" N 

- 76° 32' 01" W; thence 231° (M) 600 
yards to a point 35° 12' 52" N - 76° 31' 
45" W. thonco paraU i al with the ohorolino 

H\J II IV^l V ITTTTTT (J U LF T UJ VT^ 1 1 \_ril 1 Ul H_f I VJ zyj tX 

peift4- :;i^«:-l-l^'-N--;z^*3^0;i^W; 

tht^nrn O'^ Ss'^ / \ . f '\ LLX ^ r-^.-v i r^ t AHA x -^rA^- C-r^r,-^ 
nrCTT^TCT \T ^\,r \ . ^ l f IKJ CT 1_' 1^ ' 1 1 11 TTTTTT T U I U J 1 1 \J 111 

thn nnrtli .l^.^^.' 'i ^^ IT tn" \.' 2£1 111 £A1 

TTTCT TTTTTTTT > ' 1 1 ^1 1 \J ^1 ^' I ^ ^ ' T ~ ^^^^ ^T^^ '^^^^ 

Wt thL ' noo parallol with Ae ' ihofL ' line ae 

oa^ij;^ t Vi -I Ti Al II I t -■>»■. -1 .^ Tj-i-i rf-i . 1-1 J"* «-. » t j~v -i. fvj-i 1 ft t 
lllt/IU riTUJI TJT.Af TlXl li!' rTTTTTT !l| lU 1 O tTT CT fTTTTTTT 

TS" J-U 00" X - If ," MX. !'■'" Siii <u..„ — nnn° 
fM^ 600 vaftk te a point &ft 4>efe *5^ 44^ 
3^ N - ';i4i ^ 4;^:: Wf tfeenee foUosving 
the fihorolino te t4*e boginning point. 
(M) fm^ In an area bound by a line begin- 
ning at Boar Point 35° 12' 07" N - 76°^3r 
04" W running 106° (M) 2000 yards to 
Green Flasher No. 5; thence 200° (M) 
2200 yards to a point 35° 10' 56" N - 76° 



30' 10" W; thence 282° (M) 2350 yards 
to Bay Point 35° 11' 02" N - 76° 31' 35" 
W; thence following the shoreline to the 
beginning point. 

(N) (ft) In an area at the mouth of Bay River 
bound by a line begiiining at a point on 
Maw Pomt 35° 08' 55" N - 76° 32' 10" 
W running 020° (M) 1600 yards to 
Daymarker No. 1; thence 134° (M) 3800 
yards to Neuse River Junction Quick 
Flasher; thence 236° (M) 1700 yards to 
Red Day Marker No. 2 PA; thence 314° 
(M) 2750 yards to the beginning point. 

(O) (e) The waters within a circular area 
with a radius of 1,000 yards having its 
center on the southern side of Brant Is- 
land at latitude 35° 12' 30" N - longitude 
76° 26' 30" W. 
(5) In Pamlico River west of a line from a 
pomt on Pamlico Point 35° 18' 42" N - 
76° 28' 58" W runnmg 009° (M) through 
Daymarker No. 1 and WiUow Point ShoaJ 
Beacon to a point on Willow Point 35° 
22' 23" N - 76° 28' 48" W pots may be 
used in the following areas: 

(A) (a) In that area bound by a line begin- 
ning at a point on the line from Pamhco 
Pomt to Willow Pomt 35° 19' 24" N - 76° 
28' 56" W running westerly parallel to the 
shoreline at a distance of no more than 
1000 yards to a pomt 35° 19' 24" N - 76° 
29' 09" W; thence running 218° (M) 900 
yards to a point 35° 19' 02" N - 76° 29' 
24" W 100 yards from shore; thence 
westerly parallel to the shoreline at a dis- 
tance of 100 yards to a point 35° 19' 02" 
N - 76° 29' 59" W; thence 006° (M) 950 
yards to a point 35° 19' 30" N - 76° 30' 
00" W; thence westerly parallel to the 
shoreline at a distance of 1000 yards to a 
pomt 35° 20' 06" N - 76° 32' 54" W; 
thence 198° (M) 550 yards to a point 400 
yards from shore 35° 19' 49" N - 76° 32' 
59" W; thence parallel to the shoreline at 
a distance of 400 yards to a point 35° 19' 
50" N - 76° 33' 27" W; thence 008° (M) 
to a point 1000 yards from shore 35° 20' 
09" N - 76° 33' 27" W; thence westerly 
parallel to the shoreline at a distance of 
1000 yards to a point 35° 20' 12" N - 76° 
33' 55" W; thence 191° (M) to a point 400 
yards from shore 35° 19' 55" N - 76° 33' 
56" W; thence westerly parallel to the 
shoreline at a distance of 400 yards to a 
point 35° 20' 00" N - 76° 34' 34" W; 
thence 004° (M) 600 yards to a point 1000 
yards from shore 35° 20' 19" N - 76° 34' 
35" W; thence westerly parallel to the 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



539 



PROPOSED RULES 



shoreline at a distance of 1000 vards to 
Green Flasher No. 1; thence 248° (M) 
parallel to the IC\V\V to a point off 
Fulford Point 35° 19' 59" N - 76° 36' 41" 
W; thence 171° (M) to a point on Fulford 
Point 35° 19' 41" N -76° 36' 34" W. 

(B) fb) AH coastal waters and tributaries of 
Oyster Creek, James Creek, Middle Prong 
and Clark Creek. 

(C) fe^ AU coastal waters of Goose Creek: 
(i) In that area bound by a line beginning 

at a point on Reed Hammock 35° 20' 
24" N - 76° 36' 51" W running 171° (M) 
300 yards to a point 35° 20' 16" N - 76° 
36' 48" W; thence parallel with the 
shoreline no more than 300 yards from 
shore to a point 35° 20' 09" N - 76° 37' 
10" W; thence 302° (\I) 300 yards to a 
point on shore 35° 20' 13' N - 76° 37' 
19" W. 

(ii) In that area bound by a line beginning 
at a point on shore 35° 19' 58" N - 76° 
37' 33" W; running 291° (M) 300 vards 
to a point 35° 19' 57" N - 76° 37 21" 
W; thence parallel to the shoreline no 
more than 300 \ards from shore to a 
point 35° 18' 16" N - 76° 37' 16" W; 
thence 292° (M) to a point on the north 
shore of Snode Creek 35° 18' 15" N - 
76° 37' 27" W. 

(iii) In that area bound by a line begin- 
ning at a point at the mouth of Goose 
Creek 35° 19' 59" N - 76^ 36' 41" W; 
running 348° (M) to Green Daymarker 
No. 5; thence south parallel to the 
shoreline no more than 300 vards from 
shore to a point 35° 18' 12" N - 76° 37' 
07" W; thence 112° (\1) to Store Point 
35° 18' 09" N - 76° 36' 57" W. 

(iv) Between the line from Store Point to 
Snode Creek and a line beginning at a 
point on Long Neck Point running 
264° (.\I) through Beacon No. 15 to 
Huskie Point from the shoreline to no 
more than 150 yards from shore. 

(v) All coastal waters southeast of the line 
from Long Neck Point through Beacon 
No. 15 to Huskie Point. 

(vi) Campbell Creek - west of a hne from 
a point on Huskie Point 35° 17' 00" N 
- 76° 37' 06" W runnms 004° (M) to 
Pasture Pomt 35° 17' 20" N - 76° 37' 
08" W, to the Inland-Commercial line. 

(D) (4^ AU coastal waters bound by a line 
beginning on Reed Hammock 35° 20' 24" 
n''-76° 36' 51" W runnma 171° (M) to a 
pomt 35° 20' 16" N - 76° 36' 47' W; 
thence 100° (.\I) 800 yards to Red 



Daymarker No. 4; thence 322° (M) 1200 
yards to a point 35° 20' 40" N - 76° 36' 
48" W; thence westerly parallel to the 
shoreline at a distance of 300 yards to a 
pomt m Bond Creek 35° 20' 40" N - 76° 
41' 37' W; thence 199° (.M) to a point on 
the south shore of Muddy Creek 35° 20' 
IS" N - 76° 41' 34" W, mcludmg all waters 
of Muddy Creek up to the Inland-Coastal 
boundary Line. 

(E) («^ Along the west shore of Bond Creek 
from Fork Point to the Coastal- Inland 
boundar>' line from the shoreline to no 
more than 50 yards from shore. 

(F) ff| iAll coastal waters of South Creek 
upstream of a line beginning at a point on 
Fork Point 35° 20' 45" N - 76° 41' 47" W 
running 017° (M) to a point on Hickory 
Pomt 35° 21' 44" N - 76° 41' 36" W. 

(G) fg)- In that area bound by a line begin- 
ning at a point at the six foot depth con- 
tour south of Hickor> Point 35° 21' 33" 
N - 76° 41' 39" W; thence easterly fol- 
lowing the si.\ foot depth contour to a 
point off the east end of Indian Island 35° 
21' 42" N - 76° 38' 04" W; thence 270° 
(M) to a point on the east end of Indian 
Island 35° 21' 38" N - 76° 38' 36" W; 
thence foUovving the shoreline of Indian 
Island to a point on the west end 35° 21' 
37 " N - 76° 39' 40" W; thence 293° (M) 
toward Daymarker No. 1 to a point at the 
si.\ foot depth contour 35° 21' 46" N - 76° 
40' 16" W; thence following the six foot 
depth contour in a westerly direction to a 
pomt off Long Point 35° 22' 42" N - 76° 
42 44" \V; thence 233° (M) to a point on 
shore 35= 22' 24" N - 76° 43' 05" W. 

(FI) (It)- Beginning at a point on shore near 
Long Pomt 35° 22' 29" N - 76° 43' 25" 
W, running 001° (M) to a point 300 vards 
offshore 35° 22' 39" N - 76° 43' 26" W; 
thence westerly parallel to the shoreline 
at a distance of 300 yards to a point 35° 
22' 39" N - 76° 43' 59" W; thence 209° 
(M) to a point on shore 35° 22' 30" N - 
76= 44' 03" W. 

(I) (+j Beginning at a point on shore 35° 22' 
30 " N - 76° 44' 27" W, runmng 355° (M) 
to a point offshore 35° 22' 40" N - 76' 44' 
31" W; thence westerly parallel to the 
shoreline at a distance of 300 vards to a 
point 35° 22" 53" N - 76° 45' 00" W; 
thence runnine 251° (VI) to a point on 
shore 35° 22' 46" N - 76° 45" 14" W. 

(J) (j-f Beginning at a point on shore 35° 22' 
54 N - 76° 4^5' 43" \V; runnmg 003° (.M) 
to a point offshore 35° 23" 03" N - 76° 45' 



540 



:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



43" W; thence westerly parallel to the 
shoreline at a distance of 300 yards to the 
intersection of a line beginning on the 
north shore at Gum Point 35° 25' 09" N 
- 76° 45' 33" W; running 210° (M) to a 
point on the south shore 35° 23' 28" N - 
76° 46' 26" W. 
(K) (1*) All coastal waters west of a line be- 
ginning on the north shore at Gum Point 
35° 25' 09" N - 76° 45' 33" W running 
210° (M) to a point on the south shore 
35° 23' 28" N - 76° 46' 26" W. 
(L) fi^ On the north side of Pamhco River 
bound by a line beginning at the inter- 
section of the line from Gum Point to the 
south shore 500 yards from shore 35° 24' 
55" N - 76° 45' 39" W running easterly 
parallel to the shoreline at a distance of 
500 yards to a point at the six foot con- 
tour near Adams Point 35° 23' 08" N - 76° 
35' 59" \V. 
(M) {¥f>rf All waters and tributaries of North 
Creek except the marked navigation 
channel. 
(N) (ft) In that area bound by a line begin- 
ning at a point at the six foot contour near 
Adams Point 35° 23' 08" N - 76° 35' 59" 
W rumiing westerly following the six foot 
depth contour to a point off Wades Point 
35° 23' 28" N - 76° 34' 09' W. 
(O) («) Pungo River; 

(i) Bound by a line begirming at Wades 
Point 35° 23' 16" N - 76° 34' 30" W 
running 059° (M) to a point at the six 
foot depth contour, 35° 23' 28" N - 76° 
34' 09" W; thence northerly following 
the six foot depth contour to a point 
near Beacon No. 3 35° 25' 44" N - 76° 
34' 46" W; thence 272° (.M) 950 yards 
to a point on shore 35° 25' 41" N - 76° 
35' 22" W. 
(ii) Bound by a line beginning at a point 
on shore 35° 25' 50" N - 76° 35' 37" 
W running 050° (M) 1150 yards to a 
point at 35° 26' 17" N - 76° 35' 10" 
W; thence northerly following the six 
foot depth contour to a point 35° 26' 
54" N - 76° 36' 09" W; thence 314° (M) 
350 yards to a point on shore 35° 27' 
00" N - 76° 36' 20" W. 
(iii) Bound by a line beginning at a point 
on shore 35° 27' 14" N - 76° 36' 26" 
W running 077° (M) 800 yards to a 
point 35° 27' 23" N - 76° 36' 02" W; 
thence northerly following the six foot 
depth contour to a point off Windmill 
Point 35° 30' 50" N - 76° 38' 09" W; 
thence 076° (M) to a point 200 yards 



west of Daymarker No. 3 35° 31' 21" 
N - 76° 36' 37" W; thence 312° (M) to 
a point at the "Breakwater" 35° 31' 36" 
N - 76° 37' 05" W. 

(iv) All coastal waters bound by a line 
beginning at a point at the 
"Breakwater" 200 yards northeast of 
Beacon No. 6 35° 31' 47" N - 76° 36' 
51" W running 132° (M) to a point 200 
yards from Daymarker No. 4 35° 31' 
31" N - 76° 36' 21" W; thence running 
102° (M) to a pomt 35° 31' 28" N - 76° 
35' 59" W; thence running 010° (M) to 
Beacon No. 1; thence running 045° (M) 
700 yards to a point on shore 35° 32' 
22" N - 76° 35' 42" W. 

(v) All coastal waters north and east of a 
line beginning at a point on shore west 
of Lower Dowry Creek 35° 32' 25 " N - 
76° 35' 07" W running 177° (M) 1950 
yards to a point 200 yards north of 
Daymarker No. 1 1 35° 31' 31" N - 76° 
35' 06" W; thence easterly parallel to the 
marked navigation channel at a distance 
of 200 yards to a point on the shore 
northwest of Wilkerson Creek 35° 33' 
13" N - 76° 27' 36" W. 

(vi) All coastal waters south of a line be- 
gimiing on shore south of Wilkerson 
Creek 35° 33' 02" N - 76° 27' 20" W 
running westerly parallel to the marked 
navigation channel at a distance of 200 
yards to a point southeast of 
Daymarker No. 14 35° 31' 05" N - 76° 
32' 34" W; thence running 208° (M) to 
a point on shore 35° 30' 28" N - 76° 32' 
47" W. 

(vii) All coastal waters bound by a line 
beginning on shore east of Durants 
Point 35° 30' 29" N - 76° 33' 25" W 
running 347° (.M) to a point southwest 
of Daymarker No. 12 35° 31' 08" N - 
76° 33' 53" W; thence westerly parallel 
to the marked navigation channel at a 
distance of 200 yards to a point south 
of Beacon No. 10 35° 31' 08" N - 76° 
35' 35" W; thence running 185° (M) to 
a point at the six foot depth contour 
between Beacon No. 8 and the eastern 
shore of Pungo River 35° 30' 08" N - 
76° 35' 28" W; thence followmg the six 
foot depth contour to a point 35° 28' 
09" N - 76° 33' 43" W; thence 127° (M) 
to a point on shore 35° 28' 00" N - 76° 
33' 25" W; thence 159° (M) to a point 
at the six foot depth contour 35° 27' 
40" N - 76° 33' 12" W including the 
waters of Sladcs Creek and its 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



541 



PROPOSED RULES 



tnbutaries; thence 209° (M) to a point 
on shore 35° 27' 22" X - 76° 33' 21" 
\V; thence 272° (M) to a point at the six 
foot depth contour 35' 27' 18" N - 76° 
33' 53" \V; thence southerly following 
the six foot depth contour to a point 
south of Sandy Point 35° 26' 35" N - 
76° 33' 50" W; thence 087° (M) to a 
point on shore 35° 26' 38" N - 76° 33' 
34" W. 
(viii) In that area bound by a line begin- 
nine at a point on shore 35° 26' 20" N 

- 76° 33' 18" W running 176° (M) to a 
point at the six foot depth contour 35° 
26' 05" N - 76° 33' 13" \V; thence 
southerly following the six foot depth 
contour throughout Fortescue Creek to 
a point off Fortescue Creek 35° 25' 44" 
N - 76^ 32' 09" W; thence 145° (\I) to 
a point on shore 35° 25' 36" N - 76° 32' 
01" W. 

(ix) In that area bound by a line begin- 
ning at a point on shore 35° 25' 20" N 

- 76° 32' 01" W running 258° (M) to a 
point at the six foot depth contour 35° 
25' 17" N - 76° 32' 18' \V; thence fol- 
lowing the six foot depth contour to a 
point 500 yards west of Currituck Point 
35° 24' 30" N - 76° 32' 42" W; thence 
southeasterly parallel to the shoreline 
and including Abel Bay at a distance of 
500 yards to a fx)int at the intersection 
of the line from Pamhco Point to 
Willow Point 35° 22' 09" N - 76° 28' 
48" W. 

(6) In Bay River west of a line beginning at 
a pomt on Maw Point 35° 09' 02" N - 
76° 32' 09 ' W running 022° (M) to a point 
on Bay Point 35° 11' 02" N - 76° 31' 34" 
W, pots may be used in the foUowing 
areas: 

(A) fa-^ In that area beannine at a point on 
Maw Pomt 35° 09' 02" N^ 76° 32' 09" 
W; running 018° (M) to Green 
Daymarker No. 1; thence 223° (M) to a 
point on shore in Fisherman Bay 35° 09' 
18" \ - 76° 32' 23"W. 

(B) fb| In Fisherman Bay bound by a Ime 
beginning at a point on the shore west of 
Maw Point 35° 09' 18" N - 76° 33' 02" 
W; thence 351° (M) 3200 yards to hghted 
Beacon No. 3 in Bay River; thence 230° 
(M) 1200 yards to a point on the shore 
35° 10' 24"' N - 76° 34' 00 'W. 

(C) {^ In that area bound by a line begin- 
ning at a point on the east shore at the 
mouth of Bonners Bay 35° 10' 05" N - 76° 
35' 18" W; thence 306° (M) 300 yards to 



a point in Bay River, 35° 10' 10" N - 76° 
35' 30" W; thence parallel to the shoreline 
no more than 300 yards from shore to a 
pomt m Bay River 35° 10' 40" N - 76° 34' 
42" W; thence 188° (.M) to a point on 
shore 35° 10' 27" N - 76° 34' 42" W. 

(D) (4> In Bormer Bay bound by a line be- 
ginning at a point on the east shore 35° 
!0' 05" N - 76° 35' 18" W running 306° 
(M) 200 yards to a pomt 35° 10' 09" N - 
76° 35' 25" W; thence parallel to the 
shoreline no more than 200 yards offshore 
to a point 35° 09' 16" N - 76° 35' 18" W; 
thence 097° (M) 200 yards to a point on 
shore 35° 09' 16" N - '76° 35' 13" W. 

(E) fe) In Bonner Bay, Spring Creek and 
Long Creek south of a line beginning at a 
point on the east shore 35° 09' 16" N - 76° 
35' 13" W running 274° (M) to a point 
on the west shore 35° 09' 14" N - 76° 35' 
43" W. 

(F) (f^ In Boimer Bay bound by a line be- 
ginning at a point on the west shore 35° 
09' 14" N - 76° 35' 44" W running 094° 
(M) 100 yards to a pomt 35° 09' 13" N - 
76° 35' 39" W; thence parallel to the 
shoreUne no more than 100 yards offshore 
to a point in Riggs Creek 35° 09' 15" N - 
76° 36' 08" W; thence 142° (M) to a point 
on shore 35° 09' 13" N - 76° 36' 08" W. 

(G) fg> In that area bound by a line begin- 
nmg on the south shore of Bay River west 
of Bell Pomt 35° 09' 40" N -' 76° 40' 00" 
W, running 314° (M) to a point 200 yards 
offshore 35° 09' 43" N - 76° 40' 06" W; 
thence no more than 200 yards from the 
shorelme to a pomt 35° 09' 53" N - 76° 
36 45" W; thence 102° (.M) to a point 35° 
09' 50" N - 76° 35' 54" W: thence 181° 
(M) to a pomt 35° 09' 36" N - 76° 35' 51" 
W; thence 237° (M) to a point in Riggs 
Creek 35° 09' 18" N - 76° 36' 12" W; 
thence 322° (M) to a point on shore at the 
mouth of Riggs Creek 35° 09' 21" N - 76° 
36' 18" W. 

(H) (fe} In that area on the south side of Bay 
Ri\er bound by a hne beginning at a point 
on shore at the confluence of Bay River 
and Trent Creek 35° 08' 27" N - '76° 43' 
12" W runnmg 016° (M) 150 yards to a 
point 35° 08'''3r' N - 76° 43' 11" W; 
thence no more than 150 yards from shore 
to a point 35° 08' 57" N - 76° 40' 19' W; 
thence 116° (M) to a point on shore at 
Moores Creek 35° OS' 57" N - 76° 40' 14" 
W. 

Ql (H In Bay River and Trent Creek west 
of a line beginning at a point on the south 



542 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



shore 35" 08' 27" N - 76° 43' 12" W run- 
ning 016° (M) to a point on the north 
shore 35° 08' 41" N - 76° 43' 09" W. 

(J} ft) In that area on the north shore of Bay 
River bound by a line beginning at a point 
west of Vandemere Creek 35° 10' 53" N - 
76° 39' 42" W running 135° (M) 150 yards 
to a point 35' 10' 52" N - 76° 39' 39" W; 
thence no more than 1 50 yards from shore 
to a point at the confluence of Bay River 
and Trent Creek 35° 08' 37" N - 76° 43' 
10" W; thence to a point on the north 
shore 35° 08' 39" N - 76° 43' 09" W. 

(K) (ic) In Vandemere Creek northeast of a 
line beginning at a point on the east shore 
35° 11' 04" N - 76° 39' 22" W running 
315° (M) to a point on the west shore 35° 
W 12" N - 76° 39' 36" W. 

(L) (4) In that area bound by a Line begin- 
ning at a point at the mouth of 
Vandemere Creek 35° 11' 04" N - 76° 39' 
22" W, running 216° (M) 200 yards to a 
point in Bay River 35° 10' 58" N - 76° 39' 
25" W; thence parallel to the shoreline no 
more than 200 yards from shore to a point 
in Bav River northwest of Beacon No. 4 
35° 10' 40" N - 76° 36' 38" W; thence 344° 
(M) 200 yards to a point on shore 35° 10' 
45" N - 76° 36' 42" W. 

(\t) f*ft) In that area bound by a line begin- 
ning at a point on Sanders Point 35° 11' 
19" N - 76° 35' 54" W; running 067° (M) 
200 yards to a point 35° 1 1' 23" N - 76° 
35' 47" W; thence following the shoreline 
no more than 200 yards from shore to a 
point in Bay River northwest of Beacon 
No. 4 35° 10' 40" N - 76° 36' 38" W; 
thence 344° (M) 200 yards to a point on 
the shore 35° 10' 45" N - 76° 36' 42" W. 

(N) {^ In that area beginnine at a point on 
shore 35° 11' 53" N - 76° 35' 54" W of a 
line running 170° (M) to a point 35° 11' 
40" N - 76° 35' 51" W; thence paraUel to 
the shoreline no more than 500 yards 
from shore to a point 35° 11' 57" N - 76° 
35' 05" W; thence running 344° (M) to a 
point on shore at the mouth of Gales 
Creek 35° 12' 10" N - 76° 35' 12" W. 

(O) fe) In that area bound by a hne begin- 
ning at a point on shore at the mouth of 
Gale Creek 35° 12" 08" N - 76° 34' 52" 
W, runnmg 278° (\1) 200 yards to a point 
in Bay River 35° 12' 08" N - 76° 35' 02" 
W; thence running parallel to the 
shoreline at a distance of 200 yards to a 
point m Bay River 35° 1 1' 32" N - 76° 33' 
24" W; thence runnmg 352° (M) 200 yards 



to a point on shore at Dump Creek 35° 
ir39" N - 76° 33' 25" VV. 
(P) (p^ In Gale Creek except the Intracoastal 
Waterway north of a line beginning at a 
point on the west shore 35° 12' 08" N - 
76° 35' 12" W running 098° (M) to a point 
on the west shore 35° 12' 08" N - 76° 34' 
52" W. 
(0) {^ In an area bound by a line beginning 
at a p>oint on the eastern shore at the 
mouth of Rockhole Bay 35° 11' 06" N - 
76° 32' 11" W; thence 180° (M) 600 yards 
to a point in Bay River 35° 10' 49" N - 
76° 32' 09" \V; thence east with the five 
foot curve 1100 yards to a point 35° 10' 
36" N - 76° 31' 30" VV; thence 000° (M) 
850 yards to a point on Bay Point 35° 
ir02" N - 76° 31' 34" W. 
(7) In the Neuse River and West Bay Area 
south and west of a line beginning at a 
point on Maw Point 35° 09' 02" N - 76° 
32' 09" \V, running 137° (M) through the 
Maw Point Shoal Day Marker No. 2 and 
through the Neuse River Entrance Light 
to a point at the mouth of West Bay 35° 
02' 09" N - 76° 21' 53" W, pots may be 
set in the following areas: 

(A) fa^ AW coastal fishing waters northwest 
of a hne beginning at a point at the mouth 
of Slocum Creek 34° 57' 02" N - 76° 53' 
42" W, running 029° (M) to a point at the 
mouth of Beards Creek 35° 00' 08" N - 
76° 52' 13" W. Pots may also be set in 
coastal fishing waters of Goose Bay and 
Upper Broad Creek. 

(B) (4*) In that area bound by a hne begin- 
ning at a point on the north shore at MiU 
Creek 34° 59' 34" N - 76° 51' 06" W; 
thence running 223° (.M) approximately 
300 yards into the river to a point 34° 59' 
25" N - 76° 51' 14" W; thence along the 
six foot depth curve southeast to a point 
at the rock jetty 34° 58' 06" N - 76° 49' 
14" W; thence 016° (M) approximately 
300 yards to a point on the shore 34° 58' 
17" N - 76° 49' 12" W. 

(C) {^ In that area bound by a line begin- 
ning at a point on the north shore ap- 
proximately 500 yards west of Pierson 
Point 34° 58' 32" N - 76° 46' 38" W; 
thence running 171° (M) approximately 
300 yards into the river to a point 34° 58' 
24" N - 76° 46' 34" W; thence east and 
northeast along the six foot curve to a 
pomt in the over 34' 58' 47" N - 76° 45' 
39" W; thence 330° (M) approximately 
700 yards to a point on the shore 50 yards 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



543 



PROPOSED RULES 



west of an existing pier 34° 59' 04" N - 76° 
45' 54" W. 

(D) (4^ In that area bound by a line begin- 
ning at a point on the north shore east of 
Dawson Creek Bndge 34° 59' 34" N - 76° 
45' 12" W; thence running 244° (M) ap- 
proximately 500 yards to Day Marker No. 
4 (entrance to Dawson Creek Channel); 
thence running east 117° (M) to a point 
34° 59' 22" N - 76° 45' 19" W; thence east 
and northeast along the six foot curve to 
a point 50 yards west of Day Marker No. 
3 (channel to Oriental) 35° 01' 02" N - 76° 
41' 51" W; thence 303° (M) approximately 
600 vards to a point on the eastern tip of 
Wmdmill Point 35= 01' 10" N - 76° 42' 08" 
W. 

(E) (e) In Greens Creek (Oriental) west of a 
line at the confluence of Greens and 
Kershaw Creeks beginning at a point on 
the south shore 35° 01' 28" N - 76° 42' 55" 
W runnine 005° (M) to a point on the 
north shore 35° 01' 38" N - 76° 42' 54" 
W, no more than 75 yards from the 
shoreline east of this line to the Highway 
55 bridge. 

(F) (4^ In that ;u'ea bound b)' a line begin- 
ning at a point on WTiittaker Point 35° 01' 
37" N - 76° 40' 56" \V; thence running 
192° (M) approximately 500 yards to a 
point m the nver 35° 01' 23" N - 76° 40' 
57" W; thence along the six foot depth 
curve northeast to a point in the river off 
Orchard Creek 35° 03' 18' N - 76° 37' 53" 
W; thence 280° (M) approximately 900 
yards to a point on the eastern tip of 
Cockle Point 35° 03' 20" N - 76° 38' 27" 
W. 

(G) fg^ In that area bound by a line begin- 
ning at a point on the north shore near the 
mouth of Orchard Creek 35° 03' 38 " N - 
76° 37' 54" W runmng 177° (M) approx- 
imately 400 yards to a point 35° 03' 27" 
N - 76° 37' 54" W; thence along the six 
foot depth curve to a point eastward; 
thence 174° (M) 600 yards to a point on 
the north shore 35° 03' 56" N - 76° 36' 42" 
W. 

(H) rtH In that area bound by a line begin- 
ning at a point on the north shore ap- 
proximately 400 yards south of Gum 
Thicket Creek 35° 04' 12" N - 76° 36' 11" 
W; thence running 132° (M) approxi- 
mately 600 yards to a point 35° 03' 55" 
N - 76° 35' 48" W; thence along the six 
foot depth cur\'e eastward to a point 35° 
04' 10" N - 76° 34' 37" W; thence 304° 
(M) to a point on the shore 400 yards 



north of Gum Thicket Creek 35° 04' 38" 
N - 76° 35' 42" W. 

(J) f+) In Lower Broad Creek east of a line 
running 188° (Mj through Red Day 
.Marker No. 4. No more than 150 yards 
from shore between a hne running 188° 
(M) through Red Day Marker No. 4 and 
a line running 228° (.M) through Green 
Marker No. 3. Pots may not be set in 
Burton Creek. 

(J) ft4 Piney Point Shoal Area, in that area 
bound by a line beginning at a point on 
the north side of a creek (locally known 
as Wadin or Persimmon Creek) 35' 07' 
17" N - 76° 33' 26" W runnmg 115° (M) 
approximately 30O yards to a point near 
the six foot depth curve 35° 07' 15" N - 
76° 33' 16" W; thence south and southeast 
along the six foot depth curve to a point 
east of the old hdithouse 35° 05' 17" N - 
76° 32' 42" W; thence 288° (M) through 
the old lighthouse to a point on shore 
north of Red Day Marker No. 2 at the 
mouth of Broad Creek 35° 05' 42" N - 76° 
35 18" W. 

(K) (4*^ In that area bound by a line begin- 
ning at a point on the south shore of .Maw 
Bay 35° 08' 32" N - 76° 32' 38" \V; thence 
running 114° (M) to .Maw Point Shoal 
Day Marker No. 2; thence 317° (M) to 
Maw Point 35° 08' 55" N - 76° 32' 11" 
W. 

(L) (4-^ In that area east of Slocum Creek 
bound by a Une beginning at a point 34° 
57' 02" N - 76° 53' 42" W; thence running 
029° (M) approximately 1100 yards to a 
point 34° 57' 32" N - 76° 53' 28" W; 
thence along the six foot curve to a point 
34= 56' 34" N - 76° 49' 38" W; thence 176° 
(.M) approximately 300 vards to a point 
34"- 56' 26" N - 76° 49' 35" W. 

(M) t+fti In that area bound bv a line begin- 
mng at a point 34° 56' 22" N - 76° 49' 05" 
W, running 057° (M) approximately 1 100 
yards to Day .Marker "2" off Cherry 
Point; thence 097° (.M) approximately 200 
yards to a pomt 34° 56' 42" N - 76° 48' 
27" W; thence along the six foot curse to 
a pomt 34° 55' 10" N - 76° 45' 40" W; 
thence 187° (.M) approximately 400 yards 
to a point on Temple Point 34° 54' 58" 
X - 76° 45' 40 " W. 

(N) f»^ In that area southeast of a line be- 
ginning at a point at the mouth of 
Clubfo^ot Creek 34° 55' 20" N - 76= 45' 09" 
\V running 076° (M) to a point on shore 
34= 55' 37~^ N - 76° 44' 23" W. 



544 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(O) (e^ In Clubfoot Creek south of a line 
beginning at a point on the east shore 34° 
54' 30" N - 76° 45' 26" \V, running 284° 
(M) to a point on the west shore 34° 54' 
33" N - 76° 45' 43" W. Pots may be set 
50 yards from shore north of this line. 

(P) (p) In that area bound by a line begin- 
ning at the western tip of Great Island 34° 
55' 47" N - 76° 44' 50" W; thence runmng 
275° (M) approximately 500 yards to a 
point 34° 55' 46" N - 76° 45' 07" W; 
thence 029° (M) approximately 1400 
yards to a point 34° 56' 24" N - 76° 44' 
48" W; thence 120° (M) to a point 34° 56' 
06" N - 76° 43' 59" \V; thence 232° (M) 
to a point on Gnreat Island 34° 55' 50" N 
. 76° 44' 17" W. 

(Q) (^ In that area bound by a Line begin- 
ning at a point west of Long Creek 34° 
55' 38" N - 76° 44' 18" W running 064° 
(M) to a point 34° 55' 57" N - 76° 43' 43" 
W; thence 138° (M) to a point on shore 
at the mouth of Great Neck Creek 34° 55' 
50" N - 76° 43' 25" W. 

(R) ff) In that area bound by a line begin- 
ning at a point at the mouth of Great 
Neck Creek 34° 55' 50" N - 76° 43' 25" 
W, running 318° (M) 750 yards to a point 
34° 56' 04' N - 76° 43' 47" W; thence fol- 
lowing the shoreline no more than 750 
yards from shore to a point 34° 56' 50" N 
- 76° 43' 11" W; thence 116° (M) 750 
yards to a point on shore at Courts Creek 
34° 56' 42" N - 76° 42' 46" W. 

(S) f^ In that area bound by a line begin- 
ning at a point on Courts Creek 34° 56' 
42" N - 76° 42' 46" W, nmmng 296° (M) 
1000 yards to a point 34' 56' 52" N - 76° 
43' 20" W; thence parallel with the 
shoreline no more than 1000 yards to a 
point 34° 57' 53" N - 76° 41' 59" \V; 
thence 190° (M) 1000 yards to a point on 
shore 34° 57' 24" N - 76° 42' 00" VV. 

(T) (4} In that area bound by a line begin- 
ning at a point on shore, 34° 57' 24" N - 
76° 42' 00" W, runmng 010° (M) 500 
yards to a point 34° 57' 38" N - 76° 42' 
00" W; thence rurming parallel to the 
shoreline no more than 500 yards from 
shore to a point 34° 57' 33" N - 76° 41' 
00" W; thence 179° (M) to a point 34° 57' 
23" N - 76° 40' 58" W; thence 260° (M) 
to a point on shore at the mouth of 
Adams Creek 34° 57' 22" N - 76° 41' 10" 
W. 

(U) fk*) In that area bound by a line begin- 
ning at a point on the northeast side of 
Adams Creek 34° 57' 30" N - 76° 40' 36" 



W; thence 278° (M) 225 yards offshore to 
a point 34° 57' 30" N - 76° 40' 45" W; 
thence 359° (M) to a point off Winthrop 
Point 34° 58' 26" N - 76° 40' 56" W; 
thence rurming 056° (M) to a point off 
Cedar Point 34° 59' 07" N - 76° 40' 04" 
W; thence 140° (M) to the shoreline on 
Cedar Point 34° 58' 50" N - 76° 39' 41" 
W. 

(V) (¥^ In that area bound by a line begin- 
ning at a point on Cedar Point 34° 58' 50" 
N - 76° 39' 41" W, running 320° (M) 750 
yards to a pomt 34° 59' 05" N - 76° 40' 
01" W; thence parallel to the shoreline no 
more than 750 yards from shore to a point 
34° 59' 16" N - 76° 39' 31" \V; thence 167° 
(M) to a point on shore 34° 58' 56" N - 
76° 39' 21" W. 

(W) (w^ In that area bound by a line begin- 
ning at a point on shore 34° 58' 56" N - 
76° 39' 21" W running 347° (M) to a point 
34° 59' 03" N - 76° 39" 24" W; thence 
parallel to the shoreline no more than 200 
yards from shore to a point 34° 59' 08" N 

- 76° 38' 47" W; thence 184° (M) to a 
pomt on shore 34° 59' 01" N - 76° 35" 25" 
W. 

(X) (*>• In that area bound by a line begin- 
ning at a point west of Garbacon Creek 
34° 59' 01" N - 76° 38' 43" W, running 
004° (M) 750 yards to a point 34° 59' 23" 
N - 76° 38' 46" W; thence parallel with the 
shoreline no more than 750 yards from 
shore to a point off Browns Creek 35° 00' 
20" N - 76° 33' 45" W; thence 172° (M) 
to the shoreline on the west side of 
Browns Creek 34° 59' 57" N - 76° 33' 35" 
W. 

(Y) fy^ In that area bound by a line begin- 
ning at a point on shore at the mouth of 
Browns Creek 34° 59' 55" N - 76° 33" 29" 
W, rumiing 352° (M) 750 yards to a point 
on 35° 00" 22" N - 76° 33" 34" W; thence 
parallel to the shoreline no more than 750 
yards from shore to a point 35° 03' 56" N 

- 76° 28' 56" W; thence 136° (M) 750 
yards to a point on shore north of Rattan 
Bay 35° 03' 45" N - 76° 28' 32" W. 

(Z) (g^ In that area bound by a line begin- 
ning on the north side of Rattan Bay at a 
point on the shorehne 35° 03' 45" N - 76° 
28' 32" W; thence rumiing 316° (M) 600 
yards offshore to a point 35° 03' 54" N - 
76° 28' 52" W; thence running parallel 
with the shoreline 600 yards offshore to a 
pomt 35° 04" 09" N - 76° 26' 44" W; 
thence 239° (M) 600 yards to a point on 
shore 35° 04' 57" N - 76° 27' 00" W. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



545 



PROPOSED RULES 



(AA) faa-^ In Adams Creek: 

(i) Between a line running 080° (M) 
through Red Flasher No. 4 at the 
mouth of Adams Creek and a line be- 
ginning at a point on the south shore 
of Cedar Creek 34" 55' 52" N - 76° 38' 
49" W, ruiming 297° (M) to a point on 
the west shore of Adams Creek 34° 56° 
03" N - 76° 39' 27" W, no more than 
200 yards from shore. 

(ii) Between a Une beginning at a point 
at the mouth of Cedar Creek 34° 55' 
52" N - 76° 38' 49" W; running 297° 
(M) to a point on the west shore of 
Adams Creek 34° 56' 03" N - 76° 39' 
27' W, and a line beginrung at a point 
on the east shore 34° 54' 55" N - 76° 
39' 36" W; running 280° (M) to a point 
on the west shore 34° 54' 55" N - 76° 
40' 01" W; no more than 300 yards 
from the west shore and 200 yards from 
the east shore. 

(iii) South of a line beginrung at a point 
on the east shore 34° 54' 55" N - 76° 
39' 36" W, running 280° (M) to a pomt 
on the west shore 34° 54' 55" N - 76° 
40' 01" W. except in the marked navi- 
gation channel. 
(JBBf'rt*^ In South River: 

(ij Southeast of a line beginning at a 
point on the southwest shore 34' 58' 
35" N - 76° 35' 25" W, runnmg 049° 
(M) through Red Flasher No. 2 to a 
point on the northeast shore 34° 59' 07" 
N - 76° 34' 52" W, no more than 200 
yards from the shoreUne. 

(Li) That area bound by a line beginning 
at a point on the southwest shore 34° 
58' 35" N - 76° 35' 25" W, runnmg 049° 
(M) to Red Flasher No. 2; thence run- 
ning 207° (M) to a point north of 
Hardy Creek 34° 58' 13" N - 76° 35' 22" 
W: thence following the shorelme to the 
point of beginning. 
(CC) (ir€-)- In Tumagain Bay: 

(i) Between a line running 077° (M) 
through Green Flasher No. 1 and a line 
besdnnina at a point on the east shore 
34° 59' 04" N - 76° 29' 01" \V; running 
276° (M) to a point on the vvest shore 
34° 59' 03" N - 76° 29' 28" W, no more 
than 300 yards on the east shore and 
100 yards on the west shore. 

(ii) Between a line beginning at a point 
on the east shore 34° 59 04" N - 76' 
29' 01" W, running 276° (.\I) to a pomt 
on the west shore 34° 59' 03" N - 76° 
29' 28" W, and a Line beairmina at a 



point on the east shore 34° 57' 56" N 

- 76° 29' 25" W, running 275° (M) to a 
point on the west shore 34° 57' 58" N - 
76° 29' 44" \V, no more than 150 yards 
from shore. 

(DP) f44f In Cedar Bay east of a Ime be- 
ginning at a point 35° 00' 51" N - 76° 29' 
42" W runmng 023° (M) to a poLnt 35° 
or 09" N - 76° 29' 37" W, not more than 
200 yards from the shoreline. 
(EE) (^ In West Bay - North Bay area: 
(ij In that area bound bv a line begLnning 
at a point 35° 02' 32"' N - 76° 22' 27" 
\V; thence southwest 220° (M) to 
Marker No. 5 WB; thence southeast 
161° (M) to a pomt m West Bay 35= 00' 
34" N - 76° 21' 50" W; thence southwest 
184° (M) to Deep Bend Pomt 34= 58' 
36" N - 76° 21' 48" W; thence foUowing 
the shoreline of West Bay and North 
Bay to a pomt 35° 02' 09" N - 76= 21' 
53" W; thence 317° (M) to the be^- 
nLng poLnt. 
(Li) In West Bay bound by a ILne begin- 
ning at a point on shore 35° 03' 34" N 

- 76° 26' 24" W, runnmg 033° (M) 100 
yards to a point 35° 03' 38" N - 76= 26' 
23" W; thence parallel to the shoreline 
no more than 100 vards from shore to 
a pomt 35° 00' 06" 'N - 76° 25' 24" W, 
running 278° (M) to a point on shore 
35° 00' 06" N - 76° 25' 28" W. 

(iii) In West Bav bound bv a line begin- 
ning at a point 35° 00' 06" N - 76= 25' 
28" W, running 098° (M) 500 vards to 
a point 35° 00' 06" N - 76° 25' 12" W; 
thence 171° (M) 2800 vards to a point 
34= 58' 45" N - 76° 24' 42" W: thence 
270° (M) 1400 vards to a point on shore 
34° 58' 39" N - 76° 25' 22" W. 
(FF) (flf In W'est Thorofare Bay and Merkle 
Bay south and southeast of a line bcgin- 
nins at a point in West Bav at Tump 
Point 34° 58' 42" N - 76= 22' 49" W; 
thence southwest 258° (M) to .Marker Fl 
R15 ft. 3-M 8 WB; thence southwest 203° 
(M) to Lone Bay Point 34= 57' 52" N - 
76° 24' 12" W. 
(GG) <rf^ In Long Bay: 

(i) In that area bound by a line beginning 
at a point on the south side of Stump 
Bav in Long Bay 34° 57' 13" N - 76° 
27' 12" W; runmng northeast 077° (M) 
across Stump Bav to a point 34= 57' 39" 
N - 76° 25 51" W; thence 032= (M) to 
a point 34° 58' 39" N - 76° 25' 22' W, 
following the shoreline to the beginning 
point. 



546 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(ii) Southwest of a line beginning on the 

west shore 34° 57' 13" N - 76° 27' 12" 

W, running 134° (M) to a point on the 

east shore at Swimming Point 34° 56' 

46" N - 76° 26' 26" W. 

(iii) In the area bound by a Line beginning 

at a point on shore at Swimming Point 

34° 56' 46" N - 76° 26' 26" W, running 

314° (M) 300 yards to a pomt 34° 56' 

52" N - 76° 26' 33" W; thence parallel 

to the shoreline no more than 300 yards 

from shore to a point 34° 58' 03" N - 

76° 24' 10" \V; thence 203° (M) to Long 

Bay Point 34° 57' 52" N - 76° 24' 12" 

W. 

(HH) (y*) Raccoon Island, on the northeast 

shore between a point on the northwest 

shore 35° 04' 27" N - 76° 26' 16" W and 

a point on the southwest shore 35° 04' 00" 

N - 76° 25' 33" W from the shoreline no 

more than 150 yards from shore; on the 

south and west shores, no more than 50 

yards from the shorehnc. 

(8) Core Sound, Back Sound and the Straits 
and their tributaries. 

(9) North River; 

(A) fa) In that area bound by a line begin- 
ning at a point on the shore on the east 
side of North River south of Goose Bay 
34° 43' 35" N - 76° 34' 55" \V; thence 
running 252° (M) to a point in the river 
34° 43' 28" N - 76° 35' 14" W; thence 
running 355° (M) to a point in the river 
34° 45' 20" N - 76° 35' 45" W; thence 
running 060° (M) to a point in the river 
34° 45' 45" N - 76° 35' 04" \V; thence 
running 165° (M) to a point on the shore 
at the mouth of South Leopard Creek 34° 
45' 36" N - 76° 34' 59" W; thence with the 
shoreline to the point of beginning. 

(B) fb) In that area bound by a line begin- 
ning at a point on the west side of North 
River near Steep Pomt 34° 43' 40" N - 76° 
37' 20" W; thence running 040° (M) to a 
point 34° 44' 35" N - 76° 36' 36" W; 
thence running 291° M 300 yards to a 
point 34° 44' 37" N - 76° 36' 45" W; 
thence runnmg 219° (M) to a point 34° 
44' 13" N - 76° 37' 05" \V; thence running 
307° (M) to a point 34° 44' 16" N - 76° 
37' 12" W; thence runnmg 018° (M) to a 
pomt 34° 45' 20" N - 76° 36' 56" W fol- 
lowing the shoreUne to the beginning 
point. 

(C) (e) In that area of the North River 
marshes bound by a line beginning at Red 
Flasher No. "6" rurming 038° (M) along 
the southeast side of Steep Point Charmel 



through Red Day Marker No. "8" to a 
point 34° 44' 08" N - 76° 36' 52" W; 
thence 125° (M) to a pomt 34° 43' 48" N 

- 76° 36' 08" W; thence 144° (M) to a 
point 34° 43' 30" N - 76° 35' 47" W; 
thence 188° (M) to a point 34° 42' 23" N 

- 76° 35' 47" W; thence 221° (M) to Red 
Flasher No. "56"; thence 278° (M) to a 
point 34° 42' 14" N - 76° 36' 43" W; 
thence 346° (M) to a point 34° 42' 45" N 

- 76° 36' 58" W; thence 008° (M) to a 
pomt 34° 43' 14" N - 76° 36' 58" W; 
thence 318° (M) to the beginning point. 

(D) f4) In the area north of a line beginning 
on the east shore at 34° 46' 11" N - 76° 
35' 13" W; thence running 270° (M) to a 
point on the west shore at 34° 46' 1 1" N 

- 76° 37' 01" W. 

(10) Newport River: 

(A) (a) In that area bound by a line begin- 
ning at a point on the south shore 34° 45' 
30" N - 76° 43' 10" W; thence ruiming 
026° (M) to a point on the north shore 
of Newport River 34° 46' 33" N - 76° 42' 
46" W; thence with the shoreline to 
Beacon No. 24 in Core Creek; thence 
south with the Intracoastal Waterway to 
a point near Newport .Marshes 34° 44' 56" 
N - 76° 45' 38" W; thence 274° (M) to 
Crab Point 34° 44' 54" N - 76° 42' 12" 
W; thence with the shoreline to the be- 
ginning point. 

(B) fb) In that area bound by a line begin- 
ning at a point on the shore on the south 
side of RusseUs Creek 34° 45' 28" N - 76° 
39' 46' W running 278° (M) 1000 yards 
to Quick Flasher Beacon No. 29 in the 
Intracoastal Waterway; thence ruiming 
173° (M) 1700 yards with the shoal to a 
pomt 34° 44' 37" N - 76° 40' 06" W; 
thence 195° (M) 1050 yards to a point on 
Gallant Point 34° 44' 06" N - 76° 40' 11" 
W; thence east and north with the 
shoreline to the beginning point. 

(C) («) In the mouth of Ilarlowc Creek 
north of a line beginning at a point near 
White Rock 34° 46' 28" N - 76° 43' 28" 
W, running 089° (M) to a point 34° 46' 
33" N - 76° 42' 46" W. 

(11) Bogue Sound: 

(A) fa) In that area bound by a line begin- 
ning at a point 34° 42' 16" N - 76° 49' 24" 
W on the south shore of Bogue Sound 
(locally known as McGinnis Point) run- 
ning 008° (M) to a point in Bogue Sound 
34° 43' 12" N - 76° 49' 24" W thence 
running 099° (M) to Atlantic Beach 
Bndge 34° 43' 08" N - 76° 44' 12" W; 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



547 



PROPOSED RULES 



thence 119° (Mj to a point on the shore 
at Tar Landing Bay 34° 42' 30" N - 76° 
42' 12" W; thence 191° (M) to a point on 
Bogue Banks 34° 42' 00" N - 76° 42' 1 5" 
W; thence with the shoreline to the be- 
ginning point. 

(B) fb^ In that area north of the Intracoastal 
Waterway beginning at the Atlantic Beach 
Bridge and running parallel with the 
Intracoastal Waterway to Channel Marker 
(Beacon) No. 39 at Bogue (Guthrie 
Point). 

(C) fe^ In that area on the north side of the 
Intracoastal Waterway from the Old Ferr>' 
Channel to the Highway 58 bridge. 

(12) Designated pnmar>' nursery areas in all 
coastal fishing waters which are listed in 
15A NCAC 3R .0003, except Burton 
Creek off Lower Broad Creek in Pamlico 
County. 

( 1 3) West and south of the I lighway 58 Bridge 
at Emerald Isle from May 1 through Oc- 
tober 31 in areas and during such times 
as the Fisheries Director shall designate 
by proclamation. 

(b) It is unlawful to use pots from May J_ 
througli October 31 in the areas descnbed in this 
Paraijaph except in accordance with 15A NCAC 
3J .03(11 (a)(2): 

( 1 ) In Long Shoal River north of a line be- 
ta nnmg at I'malcton Point on the west 
shore 35_ 3£ 32_ N : 75° 52' 54" W run- 
ning 11)2' (M) to a point on the east shore 
35' 34 28"; N - 75^ 51' 00 " W. 

(2) In W\socking Bay: 

(A) Bound by a hne beginning at a point 
on the south shore of Lone Free Creek 
3£25_()52N-2£02;0rW running 
239° (\\) 1000 \"irds to a point 35' 24' 46" 
N - 76' 02' 32" W: thence 336' (M) 2200 
yards to a point 35° 25 42" \ - 76° 03" 
16 W, thence 062° (M) 750 ya'rds to a 
pomt on shore 35_ 25^ >£ 2l " 76' 02" 54"" 
W; thence following the shoreline and the 
Lone Free Creek pnmar\' nursery area 
line to the beginning point. 

(B) Bound bv a hne beginning at a point 
on the south shore at .Mt. Pleasant Bay 
3£23_orN-7£0£FrW, mnmng 
083° (M) 1200 \"ards to a point 35' 23" 17"' 
N - 76° 03" n' W: thence 023° (M) 2400 
yards to a point 35° 24" 35" N - 76° 04 
00" W; thence 29*^' (.\1) 1100 yards to a 



point on shore 35' 24' 38 N - 76' 04' 48 " 
\\'; thence toUowmg the shoreline and the 
Browns Island and .Mt. Pleasant Bav pri- 
mar\ nurser\' area line to the beginning 



point; except pots may be set no more 
than 50 yards from the shoreline. 

(3) In Juniper Bay bound bv a line beginning 
at a point on Juniper Bay Point 35' 20' 
jr N - 76;; ]£ 2r W running 275' (M) 
2300 yards t_o a point 15' 20' 15" N - 76^ 
L4_ 452 W, thence 007' (M) 2100 yards t_o 
Davmarker No. 3^ thence 040' (M) HQQ 
yards to a point on shore 35' 21" 45' N - 
76° 14' 24" W; thence following the 
shoreHne and the Buck Creek primary 
nurser>' area line to the beginning pomt. 

(4) In that area bound by a Ime begmrung at 
Beacon No. J_ at the mouth of Deep Cove 
runrung 314' (M) 1 41,10 yards to a point 
on shore 35' 20 12" N - 76' 24' 1 8" W; 
thence 206' (M) 3250 yards to a point 35° 
jS_ 4Lr N - 76^ 24' 54; W; thence 128° 
(M) 2000 yards to a point 35° 18' 1 1" N - 
76_ 2y 5L; W^ thence 015' (M) through 
the "Dope Boat" Beacon 3250 wards to 
the beginning pomt. 

(5) In Rose Bay bound by a line beginning 
at a point southwest of Swan Pomt 35° 
23_56_;N:2£23_3rW ninmng 288° 
(M) 1500 yards to a point on shore 35° 

2£ or N - 2£ ±£ IL llYi thence 162° 
(■M) 1650 yards t_o a pomt 35° 23' 19' N - 
76' 24' 04' W: thence 084' (.\L) 1350 yards 
to a point on shore 35' 23' 29" N - 76° 
23' 17" W: thence foUowing the shorehne 
to the beginning point. 

(6) In Spencer Bay bound bv a line beginning 
at a point on shore at WiUow Pomt 35° 
22_ 26_; N - 2£ 28; (KT W running 059° 
(\1) 1 700 yards t_o a point 35' 21 57 ' N - 
76' 27' 13" W: thence 317' (.\I) 1500 vards 
to a point 35- 23' 25" N - 76° 27' 57" W; 
thence 243' (.M) 1 300 yards to a point on 
shore 35' 23 02" N - 76' 28' 35" W; 
thence following the shorclme to the be- 
ginnmg pomt. 

(7) In Pungo River 

(A) Beginning at point on shore north of 
Grassy Point 35' 25' 41" N - 76° 35_ 2r 
W running 092' (.\1) to a point near 
Beacon No. 3 35' 25' 44" N - 76' 34' 46' 
W; thence runnmg 338' (M) to a pomt 
3y 26^ jr; N ; Z£ 35' lO" W: thence 
running 230' (Ml to a point on shore ^5° 
25_5(rN:ZlL 35_ 37_; \V_ 

(B) Beginning at a point on shore south of 
Jordan Creek 35' 27' 00 N - 76' 36' 20" 
W running 134' (M) to a point 35' 26' 54" 
N - 76^ 36_ 09_; W^ thence running 1 34' 
(.Ml t_o a point 35° 26' 54" N - 76' 36' 09" 
W; thence running 020 (M) to a point 
35' 27' 23" N - 76° 36' 02' W: thence 



548 



:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



running 257° (M) to a point on shore 35° 
2I1£ N : 76! 361 2£ W, 

(C) Beginning at a point on shore south of 
Sandy Point 35: 2£ 38^ N " Z^l 3J 3£ 
W, thence 267° (M) t_o a point 35° 26' 35' 
N - 76! 3J 5r W, thence running 143° 
(M") to a point on shore 35° 26' 05" N - 
76! 3J ir W, 'hence running 356° (M) 
to a point on shore 35° 26' 20" N - 76! 
33:i8:W, 

(D) Beginning at a point on shore south of 
Fortescue Creek 35'^ 25' 36" N - 76° 32' 
01" W running 325° (\1) to a point off 
Fort Creek 35!25_4£N-7£32:09! 
\V; thence running 202° (M) to a point 
35! 25: n: N ; 76! 32_ J_8: W, thence 
runnine 078° (M) to a point on shore 35° 
25_2CrN:76! 32' Q~l" W. 

(8) In Pamlico River: 

(A) Beanjiing at a point 35° 19' 55" N - 76° 
33: 56! W^ 'hence running 011° (\l)"to a 

point 35! 20; ir N : Z£ }L1L ^ 

thence running 288° (M) to a point 35° 
20:12! N- 76° 34' 35" \V; thence running 
184° (M) to a point 35° 20' 00" N - 76° 
34' 34" W; thence running 104° (\1) to the 
beginning point 35' 19' 55" N - 76° 33' 
56! W, 

(B) Beginning at a point 400 yards from 
shore 35!i9_49!N:76!32:59!W. 
thence running 018° (\1) to a point 35° 
20:06! N - 7£ 32; 5£ W, thence running 
287° (M) to a point 35^ 20' 09 " N - 76° 
33; 27; W^ tlience runmng 188° (M)"to a 
point 35° 1^^ 50'; N - 76°, 33' 27" W; 
thence returning to the hegirming point 
35° 19' 4q" N - 76° 32 59" W. 

(C) Beginning at a point 100 yards from 
shore 35° 19' 1)2" N - 76° 29" 24" W; 
thence running 038° (\1) to a point 35° 
\9_2A;_S- 76° 29' 09' W: thence runnmg 
288° (M) to a point 35! _19: 30! N - 76° 
30! 00! W, thence mnnmg 182° (M)"to a 
point 35° I'J 02" N - 76° 29' 59" W~ 
thence running 09'^" (M) to the beginning 
point 35° 19 02' N - 76= 29' 24" \V. 

(9) In that area north of the target ship be- 
ginning at a point 35° 14' 25" N - 76! 2lL. 
05" W; running 071° (M) 2000 vards to a 



point 35° 14' 52" N - 76° 26' 00" W; 
thence 168° (\1) 1800 yards to a point 35° 
14' 03" N - 76= 25' 39" W; thence 273° 



(M) 2000 vards to a pomt 35^ 13' 57" N - 
76! 261 55_ \V, thence 350° (M) 1000 
yards to the beginning point. 
(10) Off Middle Bay: Bcgmmng at a point 
on shore on Middle Bay Point 35° 14' 48" 
N - 76° 28' 41" \V: thence running 131° 



(M) 3550 vards to a point 35° 13' 51" N - 
76! 26! 53! W^ the'nce runnmg 214° (M) 
2600 yards to a point 35° 12' 43" N - 7£ 
27 34! W^ thence running 291° (M) to 
Sow Island; thence running 310° (M) to a 
pomt on Sow Island Point 35° 13' 09" N 
- 76! 29: 27! W^ 'hence followmg the 
shoreline to a point on Big Fishing Point 
35!b£03!'N-76!29:53!W^ thence 
ruiming 008° (M) to a point 35° 14' 35" 
N - 76! 29; 53! W, thence followmg t_he 
shoreline back to the beginning pomt 35° 
14- 48" N - 76° 28' 41" W. 

(11) In Jones Bay: 

(A) Beginning at a point on shore north of 
Boar Pomt 35° 12' 23" N - 76° 31' 16" 
W; thence running 036° (M) to a point 
35_ ]2: 48: N - 76! 3r 00! W; "thence 
mnnmg 286° (.M) to a point 35° 12' 52" 
N - 76! 3r 47! W, thence running 231° 
(M) to a point on shore 35° 12' 37" N - 
76° 32'~ 00" W, thence following the 
shoreline back to the beginning point 35° 
12 23" N - 76° 31' 16" \V. 

(B) Beginning a[ a point at Boar Point 35° 
\2_iyr_S- 76° 31' 04" W: thence mnning 
106° (M) 2"000 yards to Green Flasher No. 
5^ thence 200' (M) 2200 \ards to a pomt 
35! Ur 56: N- 76° 30' 10" VV; thence 282° 
(M) 2350 vard"s t_o Bav Point 35° 11' 02" 
N - 76! 3r 35! W, thence following the 
shoreline to the beginning pomt 35° 12' 
07" N - 76° 31' 04" W. 

( 12) In an area at the mouth of Bay Ri\er 
bound by a hne bcginning at a point on 
Maw Point 35° 08 55" \ - 76^ 32 10" 
W runnmg 020° (M) 1600 yards to 
Davmarker No. ]^ thence 134° (M) 3800 
\ards to Neuse River Junction Quick 
Flasher; thence 236' (M) 1700 yards to 
Red Dav .Marker No. 2PA; thence 314° 
(.M) 2750 yards to the beginning point. 

(13) In Bay River: 

(A) Begirming at a point on shore 35° 10' 
2£ N - 76! 3£ 00! W, thence running 
051° (M) to Beacon No. 3 in Bav River 
35!20:47:N-76!33:30:W^ thence 
running 273° (M) to a point 35° 10' 41" 
N - 7£ 3£ 4r W, thence running 188° 
(Ml to a point on shore 35° 10" 27" N - 
76! 34; 42: \\! thence followmg the 
shoreline to the beginning point 35° 10' 
2£2ll76! 34' 00" W. 

(B) Beginning at a point on shore at Moore 
Creek 35!08_5j_N;;76:40:]4:\V^ 
ginning 296° (M) to a "point 35° OS' 59" 
N ; 76! 50; 22! W. 'hence no more than 
150 vards from shore to a point 35° 09' 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



549 



PROPOSED RULES 



4r N : Z£ 121 062 W, thence running 
134" (M) to a point on shore west of Bell 
Point 35° Oy 40" N - 76" 40' 00" W. 
(14) In Ncuse River: 

(A) Beginning at a point on shore north of 
Swan Creek 35°"07' 17" N - 76° 33_ 26: 
W running 1 15° (\1) to a point near the 
6 foot depth contour 35° 07' 15" N - 76° 
3y _16: W^ thence running 074° (\f) to 
Beacon No. 2 at Maw Point Shoal; thence 
running 294° (M) to a point on shore 35° 
OS' 30" N - 76° 32' 36" W; thence follow- 
ing the shoreline to the beginning point 
35° 07' 17' N - 76° 33' 26" \V. 

(B) Beginning at a pomt on shore north of 
Gum Ihickct Creek 35° 04' 40" N - 76° 

129° (MMo a 
34' 37" \V; 



35' 38" W; thence running 
point 35° 04' 



jr N - 76^ 

thence running 355° (\1) to Beacon No. 
j_ in Broad Creek; thence running the six 
foot contour line to Green .Marker No. 3^ 
(C) Beginning at a point on the eastern tip 
of Cockle Pomt 3£ OT 20_ N ^ 7£ 3£ 
27" W; thence running 100° (\I) to a 

^ "37' 53" W; 

(.M) to a point on 
54" W; 



W^ thence 

point 35; OJ _ 
thence running 
shore 35° 03' 38 



running 100° 
ir N - 76; 
005° 

N - 76° 37' 



thence following the priman' nurser\' area 
hue to the beginning pomt 35° 03' 20" N 
- 76° 38' 27" W. 

(D) Beginning at^ a point on shore on the 
eastern side of thc-MB^'B channel 34° 58' 
J[6_; N : 2£ fill or W running 186° (M) 
to a point on 6 foot depth contour 34° 58' 
or N - 76; 4£ 0£ W^ thence foUowmg 
the 6 foot depth contour to a point 34° 
58' 24" N - 76; 46^ 34; \V; thence running 
351° (.M) to a pomt on shore 34° 58' 32" 
N - 76; 46; 38; W, 

(E) Beginning at a point on shore at Beards 
Creek 35° 0£ iW N -_^ lb' 52_ 13" \V; 
thence running 209° (\1| to a point 34° 
59' 52" N - 76° 52' 20" W; thence running 
along the 6 foot depth contour to a point 
34° 59' 25" N - 76° 5 I'M" W; thence run- 
nmg 043° (.M) to a point on shore at^ .Mill 
Creek 34° 59' 34" N -_ 76° 51' 06" W. 

Statutory Authority G.S. 113-134; 113-182; 
113-221; I43B-2S9.4. 

.0008 MECHAMC.VL METHODS PROFIIBITED 

(a) It is unlawful to use mechanical methods 
to take o\ stars in Pamlico Sound, within the area 
bounded by a line beginning at a point on the 
north side of Swash Inlet 34° 58' 50" N - 76° 09' 
13" W; thence running 272° (M) 5,420 yards to 
a point in Wamwright Channel 34° 59' 30" N - 



76° 12' 22" W immediately east of the northern 
tip of Wamwright Island; thence 019° (M) 2,000 
yards to red 4 second interval flashing beacon 
"2CS" 35° 00' 16" N - 76° 12' 12" W; thence 033° 
(.M) 2,900 yards to 4 second interval flashing 
beacon "HL" 35° 01' 35" N - 76° 11' 27" W, 
thence 043° (M) 14,450 yards to a point in 
Pamlico Sound 35° 07' 06" N - 76° 06' 54" \V 
from which point green 4 second interval flashing 
beacon "3" on Royal Shoal bears 005° (M) 6,000 
yards; green 6 second interval flashing beacon 
"5" on Royal Shoal bears 325° (M) 6,220 yards; 
and a yellow 6 second interval flashing beacon 
on Royal Shoal bears 257° (M) 3,000 yards; 
thence 078° (M) 7,800 yards to green 2.5 second 
interval flashmg beacon "9" 35° 08' 26" N - 76' 
02' 30" W in Nine Foot Shoal Channel; thence 
067° (M) 3,640 yards to red 4 second interval 
flashmg beacon "14BF" 35° 09' 21" N - 76° 00' 
39" W m Big Foot Slough Channel; thence 078' 
(M) 26,260 yards to a quick-flashing beacon 35' 
14' 00" N - 75° 45' 50" W; southwest of OUver 
Reef; thence 033° (M) 6,100 yards to 2.5 second 
interval flashing beacon "1" 35° 16' 46" N - 75° 
44' 16" W m Rollmson Channel; thence 079° (M) 
13,920 yards to red 4 second interval flashing 
beacon "2" 35° 19' 02" N - 75° 36' 19" W in Cape 
Channel; thence 038° (M) 8,800 yards to green 4 
second interval flashing beacon "1" at 35° 22' 48" 
N - 75° 33' 36" W in Avon Channel; thence 027° 
(M) 1 1,900 yards to a point on Gull Island at 35° 
28' 27" N - 75° 31' 21" W; thence 012° (M) 
15,400 to 4 second interval flashing beacon 
"ICC" 35° 36' 00" N - 75° 31' 12" W at 
Chicamacomico Charmel; thence 331° (M) 8,600 
yards to a point in Pamlico Sound at 35° 39' 21" 
N - 75° 34' 24" W; thence 013° (M) 7,250 yards 
to a point in Pamlico Sound at 35° 42' 57" N - 
75° 34' 09" W; thence 045° (M) 7,200 yards to a 
point on the shore of Hatteras Island at 35° 45' 
54" N - 75° 31' 06" W; thence running southward 
with the shoreline of Hatteras Island to a point 
35° 11' 30" N - 75° 44' 48" W on the southwest 
end of Hatteras Island; thence 269° (M) 2,380 
yards across Hatteras Inlet to a point 35° 11' 18" 
N - 75° 46' 15" W on the northeast end of 
Ocracoke Island; thence southwest with the 
shoreline of Ocracoke Island to a point 35° 03' 
54" M . 76° 00' 54" W on the southwest end of 
Ocracoke Island; thence 268° (M) 2,220 yards 
across Ocracoke Inlet to a point 35° 03' 42" N - 
76° 02' 15" W on the northeast end of 
Portsmouth Island; thence running southwest 
with the shoreline of Portsmouth Island and 
Core Banks to a point on the north side ot Swash 
Inlet 34° 58' 50" N - 76° 09' 13" W, to the point 
of the beginning, except on private bottom by 



550 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



permit. This closure area will be in effect until 
October 1, 1993. 

(b) It is unlawful to use mechanical methods 
to take oysters in Core Sound and its tributaries 
southwest of a line beguining at a point on the 
north side of Swash Inlet 34° 58' 50" N - 76° 09' 
13" W, and runnmg 292° (M) to a point off Hog 
Island Reef 35° 00' 06 " N - 76° 14' 52" \V and in 
Back Bay, North Bay, the Straits, Back Sound, 
North River, Newport River, Bogue Sound and 
White Oak River, except on private bottom by 
permit. 

(c) It is unlawful to use mechanical methods 
to take oysters in any of the coastal waters of 
Onslow, Pender, New Hanover, and Brunswic k 
Counties, foUo' i ving areas: Back Bay at- Hog \%- 
lond. North Bay, Ae Straits, Back Sound, North 

\y m T t'-^r^ \. t-^WfV^f^w-^ l^^^^^^^- ^^^^^^^^^^ ^^^^^^J^^^^ ^^^^^^^^a ^^^^^^r 

Riv e r, N e sv Rivor, Lookwoodo FoUy Ri' i or, 
ShaUotte R^ivor, aftd Saucepan Crook (Bruno wick 
County), except on private bottom by permit. 



Statutory Authoritv G.S. 
I43B-289.4. 



113-134: 113-182; 



•kie-k-k-k'^-k-k-k-k-k-k^-k-k-k-k-k 



lyot/ce is hereby given in accordance with G.S. 
150B-2I.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule(s) 
cited as ISA NCAC 10 A .1001; IOC .0305; I OF 
.0307, .0323, .0355. 

1 he proposed effective date of this action is Oc- 
tober I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 30, 1992 at the Archdale Building, 
Room 386, 512 N. Salisbury Street. Raleigh, NC 
27604-1188. 



R 



easons for Proposed Actions: 



ISA NCAC lOA .1001 - To allow the issuance of 
warning tickets for two additional offenses. 

ISA NCAC IOC .0.?0S - To provide notice that the 
Executive Director may suspend or extend the 
striped bass season by proclamation. 

ISA NCAC lOF .0.^07 - To reduce speed in high- 
traffic boating areas. 

ISA NCAC lOF .0323 - To protect swimmers in the 
vicinity of the Lake James Campground from 
speeding boats. 



ISA NCAC lOF .03S5 - To reduce speed in high- 
traffic boating areas. 

O omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from June 
15, 1992 to July 15, 1992. Such written comments 
must be delivered or mailed to the N.C. Wildlife 
Resources Commission, 512 N. Salisbury Street, 
Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOLRCES AND 
WATER SAFETY 

SLBCHAF'TER lOA - WILDLIFE RESOLRCES 
COMMISSION 

SECTION .1000 - WARNING TICKETS 

.1001 PARTICULAR OFFENSES 

(a) Warning Tickets Prohibited. Wildlife 
Enforcement OtTicers shall not issue warning 
tickets for the following offenses, classes of of- 
fenses or offenses committed in a particular 
manner: 

(1) second offense of a similar charge; 

(2) hunting, fishing, or trapping without a li- 
cense, except as listed in this Rule; 

(3) exceeding bag or creel limits; 

(4) taking fish or wildlife by use of poison, 
explosives, or electricity; 

(5) hunting, fishing, or trapping in closed 
season; 

(6) hunting on Game Lands during closed 
days; 

(7) firehghting deer; 

(8) unlawful taking or possession of antlerless 
deer; 

(9) unlawful taking or possession of bear or 
wild turkey; 

(10) unlawful purchase or sale of wildlife; 

(11) unlawful taking of fox; or 

(12) taking wildlife with the aid of or from a 
motor vehicle or boat under power or 
while in motion. 

(b) Warning Tickets Permitted. In accordance 
with the conditions provided in G.S. 113- 140(c) 
and where there is a contemporaneous occur- 
rence of more than three violations of the 
motorboat statutes or administrative rules, 
WildUfe Enforcement OfTicers may issue a cita- 
tion on the two most serious violations and a 
warning ticket on the lesser violation(s). In ad- 
dition, Wildlife Enforcement Officers may issue 
warning tickets for the following offenses: 

(1) Boating Violations: 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



551 



PROPOSED RULES 



(A) number missing, lack of contrast, not 
properly spaced or less than three inches 
in height; 

(B) no validation decal affixed or incorrect 
placement; 

(C) fire extinguisher not charged or non- 
approved; 

(D) no fire extinguisher on boats with false 
bottoms not completely sealed to hull or 
filled with flotation material; 

(E) failure to notify North Carolina Wildlife 
Resources Commission of change of ad- 
dress of boat owner; 

(F) personal flotation device not Coast 
Guard approved; 

(G) failure to display navigation lights when 
there is evidence that lights malfunctioned 
while underway; 

(H) no sound device (on Class I boats 
only); 

(I) muffler not adequate; 

(J) loaded firearm on access area; 

(K) parking on access area in other than 
designated parking area, provided traffic 
to ramp not impeded; 

(L) motorboat registration expired ten days 
or less; 

(M) no Type IV throwable personal 
flotation device on board, but other per- 
sonal flotation device requirements met; 
or 

(N) violation of no-wake speed zone when 
mitigating circumstances present. 
(2) License Violations: 

(A) persons under 16 hunting, trapping, or 
trout fishing without meeting statutory 
requirements; 

(B) senior citizens hunting or fishing with- 
out valid license(s) (Senior citizens are 
those persons 65 years old or older); 

(C) when it appears evident that the wrong 
Ucense was purchased or issued by mis- 
take; 

(D) failure to carry required hcense or 
identification on person, if positive iden- 
tification can be established; 

(E) non-resident hunting, fishing, or trap- 
ping with resident hcense, if domicile is 
established, but not 60 days; ef 

(!') hunting, fishing, or trapping on Game 
Lands or fishing in Designated Trout 
Waters that are not properly posted or 
have been posted for no more than 30 
days; or 

(G) persons who are 18 years or older or 
who do not reside with their parents, 
uhcn such persons are taking wildlife 
upon their parent's land without a license 



as required by G.S. 



113-270.2, 



1 13-270. 3(b) except for subdivision (5), 
113-270.5. 113-271, or 113-272. 

(3) Game Lands Violations; 

(A) camping on Game Lands in other than 
designated area; or 

(B) possession of weapons readily available 
for use while on game land thoroughfare, 
during closed season. 

(4) Trapping Violations: 

(A) improper cham length at dry land sets; 

(B) trap tag not legible; 

(C) trap tag missing, but with a group of 
properly tagged traps; 

(D) trap tag missing, but evidence that ani- 
mal destroyed; 

(E) improp)er jawsize; 

(F) failure to comply with "offset" jaw re- 
quirement for traps with jaw spread of 
more than 5 'A inches; 

(G) failure to attend traps daily, during se- 
vere weather (ice, high water, heavy 
snow); or 

(H) no written permission, but on right-of- 
way of public road. 

(5) Miscellaneous Violations: 

(A) allowing dogs, not under the control 
of the owner to chase deer during closed 
season; 

(B) attempting to take deer with dogs, or 
aOowing dogs to chase deer in restricted 
areas; 

(C) using dogs to track wounded deer dur- 
ing primitive weapon season; 

(D) failure to report big game kill to nearest 
cooperator agent, when game is tagged 
and subject is enroute to another agent; 

(E) training dogs or permitting them to run 
unleashed on Game Lands west of 1-95 
during the period of April 1 through Au- 
gust 15; 

(F) violation of newly adopted regulations, 
when not readUy available to the public; 

(G) violation of local laws, when informa- 
tion not a\ailable to the pubhc; 

(H) all permits (except for fox depredation 

permit); 
(I) closed season, if misprinted in digest or 

suddenly changed; 
(J) minor record \iolation (taxidermist); ef 
(K) failure to put name and address on 

marker (trothne); or 
(1) failure to put name and address on nets. 
(c) Special Consideration. Special consider- 
ation may be given in loc;il areas where the 
offender is hunting or fishing out of his normal 
locality and is unfamiliar with the local law. 
Consideration may also be given for minor vio- 



552 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



lations on newly opened or established Game 
Lands and on reclassified or newly Designated 
Mountain Trout Waters. Special consideration 



may be given to youthful offenders under 18 
years of age. 



Statutory Authority G.S. 1 13-140. 
SLBCHAPTER IOC - INLAND FISHING REGULATIONS 
SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and 
creel and size limits are as indicated in the following table: 



GAME FISHES 


DAILY CREEL 
LIMITS 


MINIMUM 
SIZE LIMITS 


OPEN SEASON 


Mountain Trout: 
Wild Trout 
Waters 


4 


7 in. 
(exc. 15) 


All year 
(exc. 2) 


Hatchery Sup- 
ported Trout 
Waters and 
undesignated 

waters 


7 


None 


All year, except 
March 1 to 7:00 a.m. 
on first Saturday 
in April 
(exes. 2 & 3) 


Muskellunge 
and Tiger Musky 


2 


30 in. 


ALL YEAR 


Chain Pickerel 
(Jack) 


None 


None 


ALL YEAR 


Walleye 


8 

(exes. 9 & 10) 


None 

(exc. 9) 


ALL YEAR 


Sauger 


8 


15 in. 


ALL YEAR 


Black Bass: 
Largemouth 


5 

(exc. 10) 


14 in. 
(exes. 4, 
8& 11) 


ALL YEAR 

(e.xc. 13) 


Smallmouth 
and Spotted 


5 

(exc. 10) 


12 in. 

(exes. 4, 
8& 11) 


ALL YEAR 


White Bass 


25 


None 


ALL YEAR 


Sea Trout (Spot- 
ted or Speckled) 


None 


12 in. 


ALL YEAR 


Flounder 


None 


13 in. 


ALL YEAR 


Red drum (channel 
bass, red fish, 
puppy drum) 


None 


14 in. 


ALL YEAR 


Striped Bass 


8 aggregate 


16 in. 


ALL YEAR 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



553 



PROPOSED RULES 



and their hybrids 
(Morone Hybrids) 


(exes. 1 & 6) 


(exes. 1, 
6& 12) 


(exes. 6, <fe 16, 
and 18) 


Kokanee Salmon 


7 


None 


ALL YEAR 


Panfishes 


None 

(exes. 5 & 14) 


None 
(exc. 14) 


ALL YEAR 

(exc. 5) 


NONGAME FISHES 


None 
(exc. 17) 


None 

(exc. 17) 


ALL YEAR 

(exc. 7) 


(b) Exceptions 









(1) 



(2) 

(3) 

(4) 

(5) 
(6) 



(7) 
(8) 



(9) 



(10) 
(11) 



In the Dan River upstream from its confluence with Bannister River to the Brantly Steam Plant 
Dam, and in John H. Kerr, Gaston, and Roanoke Rapids Reservoirs, the creel limit on striped 
bass and Morone hybrids is four in the aggregate and the minimum size limit is 20 inches. 

In designated public mountain trout waters the season for taking all sp»ecie5 of fish is the same 
as the trout fishmg season. There is no closed season on taking trout from Nantahala River and 
all tributaries (excluding impoundments) upstream from Nantahala Lake, and the impounded 
waters of power reservoirs and municipally-owned water supply reservoirs open to the public for 
fishing. 

Under an agreement with Tennessee, the minimum size limit on trout in Calderwood Reservoir 
is seven inches. 

Bass taken from streams designated as public mountain trout waters or from Calderwood Res- 
ervoir may be retained without restriction as to size limit. 

On .Mattamuskeet Lake, special federal regulations apply. 

In the inland fishing waters of Cape Fear, Neuse, Pungo and Tar-Pamhco Rivers and their 
tributaries extending upstream to the first impoundment, the daily creel hmit for striped bass and 
their hybrids is one fish and the minimum length Limit is 18 inches. In the Roanoke River up 
to the first impoundment, from July 1 through March 31 and June 1 through June 30 the daily 
creel limit for stripped bass is one fish and the minimum length limit is 18 inches; from April 1 
to May 31 the daily creel limit is three fish, no fish between the lengths of 22 inches and 27 
inches may be retained, and the minimum length limit is 16 inches, except no fish may be re- 
tained in Roanoke River and its tributaries including Cashie, Middle and Eastmost rivers from 
May 1 to December 31, 1991. 

See 15A NCAC IOC .0407 for open seasons for taking nongame fishes by special devices. 

The maximum combined number of black bass of all species that may be retained per day is 
five fish, no more than two of which may be smaller than the apphcable minimum size limit. 
The minimum size limit for all species of black bass is 14 inches, with no exception in Lake Luke 
Marion in Moore County, in Reedy Creek Park lakes in Mecklenburg County, and in Currituck 
Sound and tributaries north of Wright Memorial Bridge; in North River and tributaries in 
Currituck and Camden Counties north of a line between Camden Point and the end of SR 1 124. 
In and west of Madison, Buncombe, Henderson and Polk Counties the minimum size limit is 
12 inches. In B. Everett Jordan Rescr\'oir a minimum size limit of 16 inches, with no exception, 
applies to largemouth bass. In Falls of Neuse Reservoir, east of SR 1004, Sutton Lake and 
Tuckertown Lake no black bass between the lengths of 12 inches and 16 inches may be retained, 
and the minimum size limit for black bass is 16 inches, except that the daily creel may contain 
two black bass of less than 12 inches in length. In W. Kerr Scott Reser\oir there is no minimum 
size limit for spotted bass. 

A minimum size limit of 15 inches applies to walleye taken from Lake James and its tributaries, 
and the daily creel hmit for walleye is four fish in LinvUle River upstream from the NC 126 
bridge above Lake James. 

The creel limit for black bass and walleye taken from Calderwood Reservoir is 10. 

The minimum size limit for all black bass, with no exception, is 18 inches in the following 
trophy bass lakes: 

(A) Cane Creek Lake in Union County; and 

(B) Lake Thom-A-Lex in Davidson County. 



554 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(12) In all impounded inland waters and their tributaries, except those waters described in Ex- 
ceptions (1), the daily creel limit of striped bass and their hybrids may include not more than 
two fish of smaller size than the minimum size limit. 

(13) In Cane Creek Reservoir (Orange County) the season for taking largemouth bass is closed. 

(14) In Lake Tillery, Falls Lake, Badin Lake, and Tuckertown Lake a daily creel limit of 20 fish and 
a minimum size limit of 8 inches apply to crappie. 

(15) In SUck Rock Creek the minimum size is 7 inches for brook trout and 10 inches for brown and 
rainbow trout. 

(16) In designated inland fishing waters of Roanoke Sound, Croatan Sound, Albemarle Sound, 
Chowan River, Currituck Sound, Alligator River, Scuppcmong River, and their tributaries (ex- 
cluding the Roanoke River and Cashie River and their tributaries), striped bass fishmg season 
is closed when adjacent joint or coastal fishing waters are closed to hook and line fishing for 
striped bass by the .Marine Fisheries Commission. 

(17) The daily creel and length Limits for channel, white, and blue catfish in designated urban lakes 
are provided for in 15A NCAC IOC .0401(d). 

(18) The Executive Director may, by proclamation, suspend or extend the hook-and-line season for 
striped bass in the inland and joint waters of coastal nvers and their tributanes. ]t is unlawful 
to violate the provisions of any proclamation issued under this authority. 

Statutory Authority G.S. 113-134; 113-292: 113-304; 113-305. 



SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGLLATIONS 

.0307 CATAWBA: IREDELL: LINCOLN 
AND MECKLENBLRG COUNTIES 

(a) Regulated Area. This Rule applies to Lake 
Norman which is located in the counties of 
Catawba, Iredell, Lincoln and Mecklenburg. 

(b) Speed Limit Near Shore Facilities. No 
person shall operate a vessel at greater than no- 
wake speed within 50 yards of any marked boat 
launching area, bridge, dock, pier, marina, boat 
storage structure, or boat service area on the wa- 
ters of Lake Norman. 

(c) Speed I imit Near Parks: No person shall 
operate a vessel greater than no-wake speed 
within 50 yards of the followiniz parks as desig- 
nated by appropriate markers: 

Q] Jetton Park; 

(2) Brown's Cove Park. 

(d) f^ Restncted Swimming Areas. No person 
operating or responsible for the operation of a 
vessel shall permit it to enter any marked swim- 
ming area on the waters of Lake Norman. 

(e) {4rf Placement and Maintenance of .Markers. 
Each of the boards of commissioners of the 
above-named counties is designated a suitable 
agency for placement and maintenance of na\i- 
gational aids and regulator.' markers of a general 
nature on the waters of Lake Norman within the 
boundaries of each respective county. Provided 
the said counties exercise their supervisory re- 
sponsibility, they may delegate the actual process 
of placement or maintenance of such markers to 



some other agency, corporation, group, or indi- 
vidual. 

With regard to marking the restricted zones de- 
scribed above, markers may be placed and main- 
tained by the individuals using the protected 
areas and facUitics in accordance with the Uni- 
form Waterway Markmg System and supple- 
mentary standards as set forth in Rule .0301(g)(1) 
to (8) of this Section. 

(f) fe^ .Markers Reflecting County Regulation. 
\\'here any marker conforming or required to 
conform to the uniform system is placed in or 
near Lake Norman advising the public of the 
provisions of any local act or of county ordi- 
nances made under the authorit\' of any local act 
and: 

(Ij Such provisions are not within the 
enforcement jurisdiction of the Commis- 
sion; and 
(2) The Commission has not passed regu- 
lations of an identical or closely similar 
nature to that of the provisions in ques- 
tion, 
such marker to be deemed in conformity with the 
uniform system must bear on it the legend 
"County Regulation" at such a place or at such 
places as needed to indicate which provisions are 
not enforceable by the Commission as a matter 
of state law. 

(g) (f^ Miscellaneous Restrictions. In addition 
to the acts prohibited by Paragraph (f) of Rule 
.0301 of this Section, it is unlawful to commit 
any such act with respect to any marker placed 
or erected under the authority of Chapter 1205 
of the 1965 Session Laws of the State of North 
Carolina by any one of the abo\'e named coun- 
ties or by them jointly. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



555 



PROPOSED RULES 



Statutory Authority G.S. 75A-3; 75A-J5; S.L. 
1965, Ch. 120S. 

.0323 BURKE COUNTY 

(a) Regulated Areas. This Rule applies only 
to the following lakes or portions of lakes which 
lie within the boundaries of Burke County: 

(1) Lake Hickory; 

(2) I^ke James; 

(3) Lake Rhodhiss. 

(b) Speed Limit. >ioar Rampo. No person 
shall operate a vessel at greater than no-wake 
speed within 50 yards of any marked public boat 
launching ramp, bridge, marina, boat storage 
structure, boat service area or pier while on the 
regulated areas descnbed in Paragraph (a) of this 
Rule or within 50 yards of any designated private 
boat launching ramp around the Holiday Shores 
Subdivision on Lake James or within 50 yards 
of the Lake James Campground. 

(c) Speed Limit m Mooring Areas. No person 
shall operate a vessel at greater than no-wake 
speed while within a marked mooring area es- 
tablished with the approval of the Executive Di- 
rector, or his representative, on the regulated 
areas described in Paragraph (a) of this Rule. 

(d) Restricted Swimming /Vreas. No person 
operating or respHDnsible for the operation of a 
vessel shall permit it to enter any marked public 
swimming area established with the approval of 
the Executive Director, or his representative, on 
the regulated areas described in Paragraph (a) of 
this Rule including the area within 50 yards of 
any designated private boat dock around the 
I loliday Shores Subdivision on Lake James. 

(e) Placement and .Maintenance of Markers. 
The Board of Commissioners of Burke County 
is designated a suitable agency for placement and 
maintenance of the markers implementing this 
Rule, subject to the approval of the United States 
Coast Guard and the United States ,Vrmy Corps 
of Engineers, if applicable. With regard to 
marking the regulated areas described in Para- 
graph (a) of this Rule, all of the supplementary 
standards listed in Rule .0301(g) of this Section 
shall apply. 

Stdtutoty Authority G.S. 75A-3; 75A-I5. 

.0355 PERQIIM.WS COUNTY 

(a) Regulated Area. Areas. This Rule applies 
to the canal ft &f I loliday h i land. following \sa- 
ters: 

(1) the canals of Holiday Island; 

(2) within 50 yards of the 1 Icrtford City Boat 
Ramp; 



(3) within 75 yards of the Perquimans River 
Bndge on U.S. 17 Business also known 
as the Hertford S-Shaped Bridge. 

(b) Speed Limit. No person shall operate any 
motorboat or vessel at greater than no-wake 
sf)eed within the regulated area described in Par- 
agraph (a) of this Rule. 

(c) Placement and .Maintenance of Markers. 
TTie Board of Commissioners of Perquimans 
County is designated a suitable agency for place- 
ment and maintenance of markers implementing 
this Rule. 

Statutory Authority G.S. 75A-3; 75A-I5. 



J\ otice is hereby given in accordance with G.S. 
I50B-2I.2 that the N.C. Wildlife Resources 
Commission intends to amend rule(s) cited as 
ISA NCAC IOC .0205 with changes from the 
proposed text noticed in the Register, Volume 6, 
Issue IS, pages 1 353-1361 . 

1 he proposed effective date of this action is Oc- 
tober I, 1992. 

/i public hearing will be conducted at 7:00 p.m. 
on July 13, 1992 at the Fine Arts Center. Franklin 
High School, Franklin, Worth Carolina. Public 
hearings on this Rule were prei'iously held on the 
dates and locations noticed in the Register. Vol- 
ume 6, Issue IS, page 1345. 

Ixeason for Proposed Action: To appropriately 
designate public mountain trout waters. 

C- omment Procedures: Interested persons may 
present their views in writing from June 15, 1992 
to July 15, 1992. Such written comments must 
be delivered or mailed to the .\.C. Wildlife Re- 
sources Commission, 512 A'. Salisbury Street, 
Raleigh, i\C 27604-1 188. 

CH.APTER 10 - WILDLIFE RESOURCES .\ND 
W.\TER SAFETY 

SUBCHAPTER IOC - INLAND FISHING 
REGUUATIONS 

SECTION .0200 - GENERAL REGULATIONS 

.0205 PUBLIC MOUNTAIN TROUT WATERS 

(a) Designation of Public Mountain Trout 
Waters. On game lands located in western North 
Carolina certain waters are clar .'i iricd ttft4 desig- 
nated as public mountain trout waters and clas- 



556 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



sified as wild trout waters or hatchery supported 
waters. For specific classifications see Subpara- 
graphs (1) and (2) of Paragraph (a) of this Rule. 
Other streams, portions of streams, and bodies 
of water which are not located on game lands are 
designated within this Rule as pubhc mountain 
trout waters and are classified as hatchery sup- 
ported trout waters or wild trout waters. These 
waters are posted and hsts thereof are filed with 
the clerks of superior court of the counties in 
which they are located: 
(1) Hatchery Supported Trout Waters. The 
hatchery supported public mountain trout 
waters are designated in this Subparagraph 
under the counties where located. Where 
specific watercourses are hsted indentation 
indicates the watercourse named is 
tributary to the next preceding 
watercourse named and not so indented. 
The designation applies to the entire 
watercourse or impoundment named, in- 
cluding tributaries when on game lands, 
except as otherwise indicated in parenthe- 
ses following the name. Other clarifying 
information may also be included paren- 
thetically: 

(A) Alleghany County: 

New River (not trout water) 

Little River (Whitehead to McCann 

Dam) 

Crab Creek 

Brush Creek (except where posted 
against trespass) 

Little Pine Creek 

Big Pine Creek 

Little Glade Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

Waterfalls Creek (South Fork Little 
River} (except where posted against 
trespass) 
South Fork New River (not trout water) 

Prather Creek 

Cranberr>' Creek 

Piney Fork 

Meadow Fork 
'^'adkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River (that portion 

on Stone Mountain State Park) De- 
layed llan'est Waters regulations apply. 

See Subparagraph (5) of Paragraph (a) 

of this Rule. 

Stone Mountain Creek 

(B) Ashe County: 

New River (not trout waters) 



North Fork New River (Watauga Co. 
line to Sharp Dam) 

Helton Creek (Virginia State line to 
New River) 

Big Horse Creek (SR 1361 bridge to 
Tuckerdale) 

Buffalo Creek (headwaters to junction 
of NC 194-88 and SR 1131) 

Big Laurel Creek 

Three Top Creek (portion not on game 
lands) 

Hoskins Fork (Watauga County line to 
North Fork New River) 

South Fork New River (not trout wa- 
ters) 

Cranberry Creek (/Vlleghany County 
line to South Fork New River) 

Nathans Creek 

Peak Creek (headwaters to Trout Lake, 
except Blue Ridge Parkway waters) 

Trout Lake 

Roan Creek 

North Beaver Creek 

South Beaver Creek (headwaters to 
Ashe Lake) 

Pine Swamp Creek (all forks) 

Old Fields Creek 

Call Creek (West Prong Old Fields 
Creek) 

Mill Creek (except where posted against 
trespass) 
(C) Avery County: 

NoUchucky River (not trout waters) 
North Toe River (headwaters to Mitchell 

County line, except where posted 

against trespass) 

Plumtree Creek 

Roaring Creek 

Squirrel Creek 

\ loruo Crook 
Elk River (SR 1306 crossing to Tennessee 

State line) 
Elk River (Lees-.McRae College boundary 

line to NC 194 bridge at Heaton, except 

where posted against trespass) 

Cranborry Croi'lc 
Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule| 

Lost Cove Creek (not Hatchery Sup- 
ported trout water, see Subparagraph 
(4) of Paragraph (a) of this Rule] 

RocldiuuD e Cruok 

Gragg Prong 

Webb Prong 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



557 



PROPOSED RULES 



iVndrows Crook Buck Timber Creek 
[not Hatchery Supported trout water, 
see Subparagraph (2) of Paragraph 
(a) of this Rule) 

Caroy Carv Mat Branch (not Hatchery 
Supported trout water, see Subpara- 
graph (2) of Paragraph (a) of this 
Rule] 

Boyde Coffey Lake 

/Vrchie CotTey Lake 
LinvLUe River (Sloop Dam to Blue Ridge 

Parkway boundary line) 

Milltimber Creek 
Linville River [Land Harbor line (below 

dam) to Ben /Vldridge line, except Bob 

MiUer property] 

(D) Buncombe County: 

Ail- c . troamo located ©» gamo Ian do. OKCopt 

thoC ' ij liotod » Subparagraph (-3) ©f 

Paragraph f*f ^ th» Rulo. 
French Broad River (not trout water) 
Big Ivy Creek (Ivy River) (Dillingham 

Creek to US 19-23 bridge) 

DiLUngham Creek (Comer Rock Creek 
to Big hy Creek) 

Stony Creek 

Mineral Creek 

Cart e r Crook (portion fte* eft- gamo 
landi) 

Comer Rock Creek 
Reems Creek (Woodfm Watershed dam 

to US 19-23 bridge, except where 

posted against trespass) 
Swannanoa River (SR 2702 bridge near 

Ridgecrest to Sayles Bleacherv' in 

Asheville, except where posted against 

trespass) 
Bent Creek 

L ake Powhatan 

Cane Creek (headwaters to SR 3138 
bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout 
water) 

Henry Fork (lower Morganton watershed 
Ime downstream to SR 1919 at \\'y 
Creek) 

Jacob Fork (Shirmy Creek to lower South 
Mountain State Park boundars') De- 
laved Han est Regulations applv. See 
Subparagraph (5) of Paragraph (a) of 
this Rule. 

Johns River (not trout water) 
Parks Creek (not trout water) 
Carroll Creek (game lands above SR 
1405) 



Linville River (first bridge on SR 1223 
below Lake James powerhouse to 
Muddy Creek) 

(F) CaJdweU County: 
Catawba River (not trout water) 
Johns River (not trout water) 

Wilson Creek (Phillips Branch to 
Browns Mountain Beach dam, ex- 
cept where posted against trespass) 
Estes Mill Creek (not trout water) 
Thorpe Creek (faUs to NC 90 bridge) 
Mulberry Creek (not trout water) 
Boone Fork (not Hatchery Supported 

trout water) 
Boone Fork Pond 

(G) Cherokee County: 

AM Qtrooms looatod eft gamo landn, oxcopt 
those Uotod m Subparagraph f^ ef 
Paragraph (a) ef tki* PkUlo. 
Hiwassee River (not trout water) 
Shuler Creek (headwaters to Tennessee 
line, except where posted against 
trespass) 
North Shoal Creek (Crane Creek) 

(headwaters to SR 1325) 
Persimmon Creek 
Davis Creek 
Bald Creek 

Beaver Dam Creek (headwaters to SR 
1326 bridge) 
Valley River 
Hyatt Creek 
Webb Creek 

Junaluska Creek (bridge at U.S. Forest 
Service road 440, Section No. 4, to 
Valley River) 
(H) Clay County: 

AH otroomc i locatod »» game landc, except 
thoo e h ' jtcxl ift Subparagraph (4^ ef 
Paragraph (a^ ef ^im Rulo. 
Hiwassee River (not trout water) 

Fires Creek (bear sanctuary line to SR 

1300) 
Tusquitee Creek (headwaters to lower 

SR 1300 bndge) 
Tuni Creek 

Chatuge l.ake (not trout water) 
Shooting Creek (headwaters to US 64 

bndge^at SR 1338) 
Hothouse Branch 
Vine\'ard Creek 
(I) Graham County: 

Ail !itroam; . locatL'd eft gam e lando. oxcopt 
thooo listed tft Subparagraph {^ ef 
Paragraph (a) ef tfe» Rul e . 
Little Tennessee River (not trout water) 
Calderwood Resen'oir (Cheoah Dam to 
Tennessee State line) 



55S 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



Cheoah River (not trout water) 
Yellow Creek 
West Buffalo Creek 
Santeelah Reservoir (not trout water) 
Santeelah Creek (Johns Branch to 

mouth) 
Huffman Creek (Little Buffalo Creek) 
SquaUa Creek 
South Fork Squalla Creek 
Big Snowbird Creek (old railroad junc- 
tion to mouth) 
Mountain Creek ( headwat e rs game 

lands boundary to SR 1138 bridge) 
Long Creek (hoadwators to lower bridg e 
»» SRr 1 137) (portion not on game 
lands) 
Tulula Creek (headwaters to lower 

bridge on SR 1211) 
Franks Creek 
Cheoah Reservoir 
Fontana Reservoir (not trout water) 
Stecoah Creek 
Sawyer Creek 
Panther Creek 
(J) Ha^-wood County: 

AH- litroams located bh- gamo landu, exc e pt 
thooo listed ift Subparagraph (-3)- ef 
Paragraph (a) trf tfe* Rule. 
Pigeon River (not trout water) 
Hurricane Creek 
Cold Springs Creek 

Jonathans Creek - lower (concrete 

bridge in DeUwood to Pigeon River) 

Jonathans Creek - upper |SR 1307 

bridge (west) to SR 1302 bndge] 
Hemphill Creek 

West Fork Pigeon River (headwaters to 
Champion International property 
line) 
(K) Henderson County: 

Ali streams located e» gam e lands, except 
those listed m Subparagraph (-3-) Para 
graph (a) trf thts Pvulo. 
Broad River (not trout water) 
Rocky Broad River (one-half mile north 
of Bat Cave to Rutherford County line) 
Green River - upper (mouth of Bob 

Creek to mouth of Rock Creek) 
Green River - lower (Lake Summit Dam 
to Polk County line) 
Camp Creek (l\)lli County foe i» S4^ 
+0+01 (SR 1212 !£ IMk County line) 
Big Hungry River 
Little Hungr>' River 
North Fork Mills River 
(L) Jackson County: 



Ail Gtroams locat e d »» gamo lands, oxoopt 

those listed i» Subparagraph (3) ef 

Paragraph (a^ ef this Rule. 
Tuckasegee River (confluence with West 

Fork Tuckasegee River to bridge at 

Wilmont Wilmot) 

Scott Creek (entire stream, except 
where posted against trespass) 

Buff Creek (SR 1457 bridge below Bill 
Johnson's place to Scott Creek) 

North Fork Scott Creek 

Savannah Creek (Headwaters to 
Bradley's Packing House on NC 1 16) 

Greens Creek (Greens Creek Baptist 
Church on SR 1730 to Savannah 
Creek) 

Cullowhee Creek (Tilley Creek to 
Tuckasegee River, except portion 
posted for Westem Carolina Univer- 
sity outdoor classroom) 

Bear Creek Lake 

Wolf Creek (not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule) 

Woff Creek Lake 

Balsam Lake 

Tanasee Creek [not Hatchery Sup- 
ported trout water, see Subparagraph 
(2) of Paragraph (a) of this Rule] 

Tanasee Creek Lake 

West Fork Tuckasegee River (Shoal 
Creek to existing water level of Little 
GlenviUe Lake) 

Little GlenviUe L ^ idc e 

Shoal Creek (GlenviUe Reservoir pipe- 
line to mouth) 
(M) Macon County: 

AH- Gtroamo located »» gam e lands, except 

those listed h* Subparagraph f3^ (rf 

Paragraph (a^ ef tlw* Rul e . 
Little Termessce River (not trout water) 
Nantahala River (Nantahala Dam to 

Swain County line) Delayed Harvest 

Regulations apply to the portion from 

Whitcoak Creek to the Nantahala 

Power and Light powerhouse discharge 

canal. Sec Subparagraph (5) of Para- 
graph (a) of this Rule. 

Queens Creek l^e 

Roaring Fork Creek (4-S- For e st SeP i 'ico 
prop e rty foe game land houndan,' to 
mouth) 

Bumingtown Creek 
Cullasaja River (Sequoah Dam to US 64 

bridge near junction of SR 1672) 

Ellijay Creek (except where posted 
against trespass) 

Skitty Creek (not trout water) 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



559 



PROPOSED RULES 



Cliffside Lake 

Cartoogechaye Creek (US 64 bridge to 

Little Tennessee River) 
Tessentee Creek (Nichols Branch to 
Little Tennessee Ri\er, except where 
posted against trespassing) 
Savannah River (not trout water) 

Big Creek (base of falls to Georgia State 
line) 
(N) Madison County: 

Aii f . triiams locot e d eft gam e landfl. except 
thooo lintod m Subparatjaph f^ ef 
Paragraph f*^ »f tfe* Rulo. 
French Broad River (not trout water] 
Shut-In Creek 

Spring Creek (junction of NC 209 and 
NC 63 to lower US Forest Senice 
boundar}- line) 
Meadow Fork Creek 
Roaring Fork 
Little Creek 
Max Patch Pond 
Mill Ridge Pond 
Big Laurel Creek (Mars Hill Watershed 
boundar,' to Rice's Mill Dam) 
Shelton Laurel Creek (head\\aters to 

NC 208 bndge) 
Big Creek (headwaters to lower game 

land boundary) 
Mill Creek 
Spillcom Creek 

Puncheon Fork (Hampton Creek to 
Big Laurel Creek) 
(O) McDowell County: 

Catawba River (not trout water) 
Buck Creek (not trout water) 

Little Buck Creek (game land portion) 
Curtis Creek (fish barrier to US 70 bridge) 

Newberry Creek (game land portion) 
North Fork Catawba River (headwaters 
to North Cove School, SR 1569 ) 
Armstrong Creek (Cato Holler line 
downstream to upper Greenlee line) 
Mill Creek (upper railroad bridge to Old 
Fort Dam, except where posted against 
trespass) 
(P) Mitchell County: 

NoUchucky River (not trout water) 
Big Rock Creek (headwaters to fishing 
club property abo\e A.D. Harrel farm) 
Little Rock Creek (Green Creek Bridge 
to Big Rock Creek, except where 
posted asainst trespass) 
Cane Creek'' (SR 1219 to Nolichucky 

Rher) 
Grassy Creek (East Fork Grassy Creek to 
mouth) 
East Fork Grassv Creek 



North Toe River (Avery County line to 
SR 1121, Altapass Road) 
(Q) Polk County: 

AH- St ream locat e d »» game lands, e xcept 
thos e listed ift Subparagraph f3^ rf 
Paragraph (*^ »f tfe* Rul e . 
Broad River (not trout water) 
North Pacolet River (Pacolet Falls to NC 
108 bridge) 
Fork Creek (Fork Creek Church on SR 

1128 to North Pacolet River) 
Big Fall Creek (portion above and be- 
low water supply reservoir) 
Green River (Henderson County line to 
mouth of Brights Creek) 
Ostin Crook (Grease Creole) (Uppor 
Hulbert Co>o P>.oad bridgo eft S44 
1 1 12 te existing Lake j\dgor vrator 
lovel, oxcopt V i hero posted against 
trespass) 
laurel Branch 
Little Cove Creek 
ftg Cove Creek 
Paxhavon Crook 
Camp Creek (Henderson County line 

(top of falls) to Green River] 
FuUoms Creek (SR 1154 to Green 
River) 
(R) Rutherford County: 

Broad River (not trout water) 
Rocky Broad River (Henderson County 
Une to head of rapids at Goose Pond 
Hole, except where posted against tres- 
pass) 
(S) Stokes County: 

Dan River (lower Flippin property line 
below SR 1416 to 200 yards down- 
stream from end of SR 1421) 
(T) Surry County: 

Yadkin River (not trout water) 
Ararat River (SR 1727 downstream to SR 
1759) Delayed Hanest regulations ap- 
ply. See Subparagraph (5) of Para- 
graph (a) of this Rule. 
Stewarts Creek (not trout water) 
Pauls Creek (Virdnia State line to SR 

1625) 
Fisher River (Cooper Creek) (\'irginia 
State line to NC 89 bridge) 
Little Fisher River (Virginia State line 
to NC 89 bridge) 
Merritt Creek 
(U) Swain Count\ : 

Aii strocuns located »» gam e lands, except 
those listod ift Subparagraph (^ ef 
Paragraph (*^ ef tiw* Rulo. 
Little Tennessee Ri\er (not trout water) 



560 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



Calderwood Reservoir (Cheoah Dam to 

Teanessee State line) 
Cheoah Reservoir 
Tuckasegee River (not trout water) 

Deep Creek (Great Smoky Mountains 
National Park boundary line to 
Tuckasegee River) 
Oconaluftee River (not trout water) 

Connelly Creek 

Alarka Creek 
Nantahala River (Macon County line to 

existing Fontana Lake water level) 
(V) Transylvania County: 
Ali otroamo located ©» gam e lands, oxcopt 

thos e liotijd m Subparagraph (5) ef 

Paragraph (e^ ef tfei* Pi.ule. 
French Broad River (junction of west and 

north forks to US 276 bridge) 
Littl e Pvivor (ftet- trout ' ■ ' ■ 'alc ' r) 

Laurol Crook (hoadwators to existing 

^^^^^^^^^^^^^ ^^^^^^^^ ^^^^^^^^r ^^^^^^^\ 

Davidson River ( gamo land boundar>' 

Avery Creek to Ecusta intake) 
East Fork French Broad River (Glady 

Branch to French Broad River) 
Middle Fork French Broad River 
West Fork French Broad River (SR 1312 

and SR 1309 intersection to junction 

of west and north forks) 
Savannah River (not trout water) 
Horsepasture River (Jackson County line 

to existing Lake Jocassee water level) 
Thompson River (SR 1152 to South 

Carolina state hne, except where p)osted 

against trespass) 

Gumbottom Crook fSft- 1 153 te 
Thompr . on Rivor) 
(W) Watauga County: 

New River (not trout waters) 

North Fork New River (headwaters to 

Ashe County hne) 
South Fork New River (not trout water) 

Meat Camp Creek 

Norris Fork Creek 

Howards Creek (downstream from 
lower faUs) 
Middle Fork New River (Lake Chetola 

Dam to South Fork New River) 
Yadkin River (not trout water) 

Stony Fork (headwaters to Wilkes 
County line) 

Elk Creek (headwaters to gravel pit on 
SR 1508, except where posted against 
trespass) 
Watauga River (SR 1559 to SR 1114 

bridge) 

Beech Creek 

Buckeye Creek Reservoir 



Coffee Lake 
Laurel Creek 

Cove Creek (SR 1233 bridge at 
Zionville to SR 1233 bridge at 
Amantha) 
Dutch Creek (second bridge on SR 

1134 to mouth) 
Crab Orchard Creek 
Boone Fork (headwaters to SR 1562) 
(X) Wilkes County: 

Yadkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River (Bullhead 
Creek to Brewer's Mill on SR 1943) 
(Delayed harvest regulations apply to 
portion on Stone Mountain State Park) 
See Subparagraph (5) of Paragraph (a) 
of this Rule. 
Stone Mountain Creek (Alleghany 

County hne to Bullhead Creek) 
Middle Prong Roaring River (headwaters 
to second bridge on SR 1736) 
Harris Creek (end of SR 1736 to 

mouth) 
PeU Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout wa- 
ters) 

Pike Creek 
Pike Creek Pond 
Reddies River (not trout water) 

Middle Fork Reddies River (Clear 
Prong) (headwaters to bridge on SR 
1580) 
South Fork Reddies River (headwaters 

to NC 16 bridge) 
North Fork Reddies River (Vannoy 
Creek) (headwaters to Union School 
bridge on SR 1559) 
North Prong Reddies River (DameU 
Creek) (downstream ford on SR 1569 
to confluence with North Fork) 
Lewis Fork Creek (not trout water) 

South Prong Lewis Fork (headwaters 

to Lewis Fork Baptist Church) 
Fall Creek (except portions posted 

against trespass) 
Stony Fork Creek (headwaters to Mt. 
Zion bridge near intersection of SR 
1155 and SR 1167) 
(Y) Yancey County: 

Nohchucky River (not trout water) 
Cane River (Cattail Creek to Bowlens 

Creek) 
Bald Mountain Creek (except portions 

posted against trespass) 
Bald Crook ffH^t- trout wator) 
LiokfildUot Crook 



7:6 NORTH CAROLINA REGISTER June 15. 1992 



561 



PROPOSED RULES 



Eik Wallosv ' (Schronco Crook) 
Indian Creek (not trout water) 
Price Creek (junction of SR 1120 and 
SR 1121 to Indian Creek) 
South Toe River (Clear Creek to lower 
boundary line of Yancey County recre- 
ation park except where posted against 
trespass) 
(2) Wild Trout Waters. All designated public 
mountain trout waters located on game 
lands m ft«4 east- »f '^'anooy, McDowoU 
aft4 Rutht » rford Cuunti e o are classified as 
wild trout waters unless classified other- 
wise. The trout waters listed in this Sub- 
paragraph are also classified as wild trout 
waters. On game lands all tributaries to 
wild trout waters are also classified as wild 
trout waters. 

(A) /^Vlleghany County: 
Ramey Creek (entire stream) 

(B) Ashe County: 

Big Horse Creek (Virginia State Line to 
SR 1361 bridge) Catch and 
Release 'Artificial Lures Only Regu- 
lations apply. See Subparagraph (3) of 
Paragraph (a) of this Rule. 

(C) A\ery County: 
Birchfield Creek (entire stream) 

Buck limbor Crook (gam e k*ft4 boundary 
downstr e am te ite mouth at- U'ilr . on 
Crook, oxcluding Hat Land Branch) 
Cory JHat- Branch (h e adss'ator - j to uppor 
gamo l(md boundary , oKcluding jVrchio 
Coffey aft4 Boyd e Coffoy Lakes. aft4 
from lowor gamo laft4 boundary to 
mouth at- Buck Timber Crook) 
Cow Camp Creek (entire stream) 
Cranbem' Creek (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 

(non gamo Icmd portions) 
Rockhouse Creek (entire stream) 
South Harper Creek (entire stream 
\\'ilson Creek (uppor -BiH- 

foi* downL . troam to the uppor gamo 
land boundary) [Catch and 

Release ''.\rtificial I ures Only regu- 
lations apply. See Subparagraph (3) of 
Paragraph (a) of this Rule.| 

(D) Buncombe County: 

Carter Creek (game land portion) (Catch 
and Release .-Vrtificial Lures only regu- 
lations apply. See Subparagraph (3) of 
Paragraph (a) of this Rule. 

(E) Burke County: 



All waters located on South Mountain 
State Park, except the main stream of 
Jacob Fork between the mouth of Shinny 
Creek and the lower park boundary where 
delayed harvest regulations apply. See 
Subparagraph (5) of Paragraph (a) of this 
Rule. 

(F) Caldwell County: 
Buffalo Creek (headwaters to lower Dahl 

property line) 
Joe Fork (Watauga County line to falls) 
Rockhouse Creek (entire stream) 

(^ Clay County: 

Buck Crook (gome laft4 portion) 
Firos Crook (gam e lafi4 portion) 

fH-^ Graham County: 

fe; Snow 8if4 Crook (upstream from ei4 

railroad junction) 
Slick Rook Crook (entire otroam) 

(4-) HayT i^ 'ood County: 

Big Crook (gam e land portion) 

&ig &a*t Fork Pigeon Ris' e r (gamo la»4 

portion) 
Cutalooohoo Crook (game land portion) 
Littlo fea^ Fork Pigeon River (gamo kfi4 

portion) 
Middlo Prong W e st Fork Pigoon Pavor 

(J-^ I londorson County: 
&§ Crook (ontiro stroam) 
Bradloy Crook (ontiro stroam) 
Flotchor Crook (ontiro stroam) 
South .Mills Riv e r (game land portion) 

(G) (4t-) Jackson County: 

Canoy Fork Crook (game land portion) 
Gage Creek (entire stream) 
Tanasee Creek (entire stream) 
Wliitewater River (downstream from Sil- 
ver Run Creek to South Carolina State 

line) 
Wolf Creek (entire stream, except Balsam 

Lake and Wolf Creek Lake) 
(4:^ Macon County: 

Nantahala Rivor (upstream from beaf 

sanotuan fa*© at Rainbow Springo) 
(H) f^Oi MitcheU County: 

Green Creek (headwaters to Green Creek 

Bridge, except where posted against 

trespass) 
Little Rock Creek (headwaters to Green 

Creek Bridge, except where posted 

against trespass) 
Wiles Creek (game land boundary to 

mouth) 
(I) f^ Transylvania County: 
jVvop i' Crook (ontiro stream) 
Bradloy Crook (ontiro stream) 
Davidson River (upstream ef iNvopy 

Crook, oxcluding Grogcm Crook) [Catch 



562 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



afi4 Roloaoo Ry Fioliing Only rogu 
lationo apply. See Subparagraph f4) %i 
Paragraph (4> &f tkk Rulo.| 
Loo Icing Glaos Crook (ontiro stream) 
North Fork Broad Ri^or [gamo land per 
tie» upotroam from Long Branch 
(Courthou ' jo Crook)! 
South Fork Mills River (entire stream) 
Whitewater River (downstream from Sil- 
ver Run Creek to South Carolina State 
line) 
(J) (Of Watauga County: 

Watauga River (Avery County line to SR 

1559) 
Boone Fork (Blue Ridge Parkway 
boundary line to Watauga River) 
[Catch and Release I-ly Fishing Only 
regulations apply. See Subparagraph 
(4) of Paragraph (a) of this Rule.) 
Howards Creek (headwaters to lower 
falls) 
(K) f*^ Wilkes County: 

Big Sandy Creek (portion on Stone 

Mountain State Park) 
Garden Creek (portion on Stone Moun- 
tain State Park) 
Harris Creek and tributaries [portions on 
Stone Mountain State Park) [Catch and 
Release Artificial Lures Only regu- 
lations apply. See Subparagraph (4) of 
Paragraph (a) of this Rule.] 
Widow Creek (portion on Stone Moun- 
tain State Park) 
(L) (^ Yancey County: 

Lickskillet Creek (entire stream) 

Middle Creek (game land boundary to 

mouth) 
Rock Creek (game land boundary to 

mouth) 
South Toe River (game land boundary 
downstream to Clear Creek) 
(3) Catch and Release/Artificial Lures Only. 
Those portions of designated wild trout 
waters as listed in this Subparagraph, in- 
cluding tributaries except as noted, are 
further classified as Catch and 
Release/Artificial Lures Only waters. 
Only artificial lures having one single 
hook may be used. No fish may be har- 
vested or be in possession while fishing 
these streams: 
Hams Creek and tributaries (portions on 
Stone Mountain State Park, Wilkes 
County) 
Big Horse Creek, excluding tributaries 
(Virginia state line to SR 1361 bridge, 
Ashe County) 



Three Top Creek (portion located on Bluff 
Mountain Game Lands, Ashe County) 

Wilson Creek (hoadwatoro {«■ gam e kmds 
boundapy above Edgomont, oxcluding 
tributarioo, j\' i 'orr County) (game lands 
portion including tributaries, Avery 
County) 

Upper Creek, Yancey County 

Lower Creek, Yancey County 

Tuckasegee River including all tributaries 
above the Clarke property, Jackson 
County 

Flat Creek, Jackson County 

Carter Creek (game lands portion), 
Buncombe County 

(4) Catch and Release/Artificial Ffies Only. 
Those portions of designated wild trout 
waters as listed in this Subparagraph, in- 
cluding tributaries except as noted, are 
further classified as Catch and Release Fly 
Fishing Only waters. Only artificial flies 
having one single hook may be used. No 
fish may be harvested or be in possession 
while fishing these streams: 

Boone Fork (portion between Blue Ridge 
Parkway boundary and the Watauga 
River, Watauga County) 

South Toe River (portion from the concrete 
bridge above Black Mountain 
Campground downstream to the game 
land boundary, excluding Camp Creek 
and Neals Creek, Yancey County) 

Lost Cove Creek (game land portion, ex- 
cluding Gragg Prong and Rockhouse 
Creek, Avery County) 

Davidson River (headwaters to A\'cry Creek 
excluding Avery Creek, Looking Glass 
Creek, and Grogan Creek, Transyhania 
County) 

(5) Delayed Harvest. Those portions of des- 
ignated Hatchery Supported Trout Waters 
as listed in this Subparagraph, excluding 
tributaries except as noted, are further 
classified as Delayed Harvest Waters. 
Between 1 March and the Friday before 
the first Saturday in June, inclusive, only 
artificial lures with one smgle hook may 
be used. No fish may be harvested or be 
in possession while fishing these streams 
during this time. On the first Saturday in 
June these streams revert to Hatchery 
Supported Waters regulations: 

Ararat River (SR 1727 downstream to SR 
1759, Surry County) 

East Prong Roaring River (portion eft Stono 
Mountain Stato Park, WHk e o County) 
(from Bullhead Creek downstream to the 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



563 



PROPOSED RULES 



lower Stone Mountain State Park bound- 



(b) 
(1 



(2) 



an , W'llkes County) 

Jaoobn Jacob I'ork (Shinny Creek to lower 
South Mountain State Park boundary, 
Burke County) 

Nantahala Ri\er (portion from Whiteoak 
Creek to the pow e rhous e , Nantahala 
Power and I ight power house discharge 
canal, Swain County) 
Fishing in Trout Waters 
Hatchery Supported Trout Waters. It is 
unlawful to take fish of any kind by any 
manner whatsoever from designated pub- 
lic mountain trout waters during the 
closed seasons for trout fishing. The sea- 
sons, si7.e limits, creel limits and pos- 
session Limits apply in all waters, whether 
designated or not, as public mountain 
trout waters. Except in power reservoirs 
and city water supply reser\'oirs so desig- 
nated, it is unlawful to fish in designated 
pubhc mountain trout waters with more 
than one line. Night fishing is not al- 
lowed in most hatchery supported trout 
waters on game lands [see 15A NCAC 
KID .0004(b)(l)|. 

Wild Trout Waters. Except as otherwise 
provided in Subparagraphs (3) and (4) of 
Paragraph (a) of this Rule, the following 
rules apply to fishing in wild trout waters. 

(A) Open Season. There is a year round 
open season for the licensed taking of 
trout. 

(B) Creel Limit. The daily creel limit is 
four trout. 

(C) Size Limit. The minimum size limit is 
seven inches. 

(D) Manner of Taking. Only artificial lures 
having only one single hook may be used. 
No person shall possess live or preser\ed 
bait while fishing wild trout waters. 

(E) Night Fishing. Fishing on wild trout 
waters is not allowed between one-half 
hour after sunset and one-half hour before 
sunrise. 



Statutory Authority G.S. 113-134; 113-272; 
113-292. 

1\ otice is hereby gri'en in accordance with G.S. 
150B-2I.2 that DEH\R-GWMB intends to 
amend rule(s} cited as ISA SCAC I4A .0502. 
.05/2. 



I he proposed effective date of this action is 
September I. 1992. 

1 nstructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice): Any person(s) requesting that the Board 
hold a public hearing on the proposed rules must 
submit such a request in writing within 15 days 
after publication of the notice. The request must 
be submitted to: Dr. Linda W. Little, GWMB, 
P.O. Box 27687, Raleigh, NC 27611-7687. 
Mailed written requests must be received no later 
than 5:00 p.m. June 30, 1992. 

IKeason for Proposed Actions: To make minor 
technical corrections to the Governor s Waste 
Management Board's existing rules of procedure 
for implementing the limited preemption process. 

(^ omment Procedures: Interested persons may 
contact Dr. Linda W. Little at (919) 733-9020 for 
more information regarding these Rules. Written 
comments will be received for 30 days after pub- 
lication of the notice. The request must be sub- 
mitted to: Dr. Linda W. Little, GWMB, P.O. 
Box 27687, Raleigh, NC 27611-7687. Mailed 
written comments must be received no later than 
5:00 p.m. July 15, 1992. 

CH.\PTER 14 - GOVER>OR'S WASTE 
M.WAGEMENT BOARD 

SI BCHAPTER 14A - RULES OF PROCEDLRE 

FOR LMPLEMENTING THE LLMITED 

PREEMPTION PROCESS 

SECTION .0500 - PREEMPTION PROCESS: 
HAZARDOUS WASTE FACILITY 

.0502 DEFINITIONS 

As used in these Rules: 

( 1 ) "Board" means the Governor's Waste 
Management Board established pursuant to 
Part 27 of .\rticle 3 of Chapter 143B of the 
General Statutes. 

(2) "Chairman" means the Chairman of the 
Board. 

(3) "City" means a municipal corporation de- 
fined by G.S. 160A-1. 

(4) "Commission" means the North Carolina 
Hazardous Waste Management Commission 
established pursuant to Chapter DOB of the 
General Statutes. 

(3) "County" means any one of the counties 
listed in G.S. 153A-10. 

(6) "Days" means calendar days. 

(7) "Facility" means a hazardous waste facility 
authorised by tfee Governor a* provid e d i» 



564 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



Q^ 130B 5(a) aft4 Gr^ 130B 5(b)(1), ei- 
tbef propooed, undor construction, »f opor 
ational. defined by G.S. 130A-290(9). 

(8) "File" or "Filing" means to place the paper 
or item to be filed into the care and custody 
of the Executive Director of the Board and 
acceptance thereof by him. All documents 
filed with the Board, except exhibits, shall 
be in letter size 8 Vi" by 11". 

(9) "Non-party" means any person who is not 
a party. 

(10) "Operator" means a private operator or 
the Hazardous Waste Management Com- 
mission or a person employed by the Haz- 
ardous Waste Management Commission 
pursuant to G.S. i30B-7. 

(11) "Ordinance" means a local ordinance, re- 
solution or other action by a county, city, 
town or other unit or agency of local gov- 
ernment including health, environmental or 
land use regulations, taxes, fees or charges. 

(12) "Party" means the person who submits a 
petition, or the city or county that adopted 
the ordinance that is the subject of the peti- 
tion. 

(13) "Person" means an individual; corpo- 
ration; company; association; partnership; 
unit of government, agency, authority or 
commission at the local, state or federal 
level; or other legal entity. 

(14) "Service" or "Serve" means personal de- 
Uvery or, unless otherwise provided by law 
or rule, dehvery by first class United States 
Postal Service mail or a hcensed overnight 
express mail service, postage prepaid and 
addressed to the party at his or her last 
known address. Service on the Board means 
personal deUvery by first class United States 
Postage Service mail or a licensed overnight 
express mail service, postage prepaid and 
addressed to the Executive Director, Gover- 
nor's Waste Management Board, P.O. Box 
27687, Raleigh, N.C. 27611-7687. A Cer- 
tificate of Service by the person making the 
service shall be appended to every document 
requiring service under these rules. Service 
by mail or with hcensed overnight express 
mail is complete upon placing the item to 
be served, enclosed in a wrapper addressed 
to the person to be ser\'ed, with sufficient 
postage affixed, in an official depository of 
the United States Postal Service or upon 
delivery, postage prepaid and wrapped in a 
wrapper addressed to the person to be 
ser\ed, to an agent of the overnight express 
mail service. 



Statutory Authority G.S. J30A-293; 

1438-216.13(14). 

.0512 APPEAL OF BOARD'S DECISION 

The decision of the Board may be appealed in 
accordance with Or^ 130A 3Q3(c). G.S. 
130A-293(e). 

Statutory Authority G.S. 130A-293; 

I43B-2I6. 13(14). 



i V otice is hereby given in accordance with G.S. 
I50B-2I.2 that DEHNR - Dh'islon of 
Epidemiologvi Vital Records Section intends to 
amend nde(s) cited as ISA NCAC I9U .0402. 

I he proposed effecti\'e date of this action is 
September I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on July 14, 1992 at the Norton Board Room, 
6th Floor, Cooper Memorial Health Building, 225 
N. McDowell Street, Raleigh, NC. 

IXeasons for Proposed Actions: The Adminis- 
trative Code modifications are required to in- 
crease the requirements for filing delayed birth 
certificates in order to reduce fraud. 



Co 



omment Procedures: A ny person requiring 
additional information concerning the proposed 
rules should contact Helen .4. Simmons, Vital 
Records Section, PO Box 29537, Raleii;h, NC 
27626-0537, (9/9) 733-3000. Written comments 
on these rules may be sent to Ms. Simmons at the 
above address, or submitted at the public hearing. 
If you desire to speak at the public hearing, notify 
Ms. Simmons at least 3 days prior to the public 
hearing. 

CHAPTER 19- HEALTH: EIMDEMIOLOGY 

SLBCIL\F'TER 1 911 VITAL RECORDS 

SECTION .0400 - DELAYED REGISTRATION 
OF BIRTHS 

.0402 DOCUMENTARY EVIDENCE: FACTS 
lO BE ESTABLISHED 

(a) The minimum facts which must be estab- 
hshed by documentary evidence shall be: 

( 1 ) the full name of the person at the time of 
birth; 

(2) the date and place of birth; 

(3) the full maiden name of the mother; and 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



565 



PROPOSED RULES 



(4) the full name of the father, except for 
births out of wedlock. 
Documents presented, other than personal affi- 
davits, to estabUsh these facts must be from in- 
dependent sources and shall be in the form of A« 
an original official record or a duly certified copy 
thereof or a signed statement from the custodian. 
These documents must have been estabhshed at 
least five years prior to the date of apphcation. 
However, documents estabhshed less than five 
years prior to date of apphcation shall be ac- 
cepted if created prior to the applicant's fifth 
birthday. 

(b) /\n affidavit of personal knowledge, to be 
acceptable, must be signed by one of the parents, 
or a person older than the registrant having 
knowledge of the facts of birth before an official 
authorized to administer oaths. 

f»H fH»f applicants ■!• to 44 y e ars bMt twe- pioooo 
e+~ documentary avidonco are roquirod, only »«# 

TZT • » I LI \> 1 1 1 1 l*-!- T (.TV (.II I 111 1 lUU 111. lJ\J III 1 L'<-'l„T^^W ^Tm^T 

proso par e ntage, aft4 ene must prov e placo »f 
birth. 

(c) fd^ For applicants, 44 aft4 ovor, three pieces 
of evidence are required, only one of which may 
be an affidavit. All three must prove name and 
date of birth, two must prove place of birth, and 
one must prove parentage. 

(d) f») All evidence shall be abstracted or in- 
cluded with the apphcation and must be signed 
by the appropriate official. The application and 
affidavits of personal knowledge shall be retained 
by the register of deeds for one year. Other 
supporting documents may be retumed to the 
apphcant upon completion of the certificate. 

(e) Any exceptions to these requirements of 
e\idcnce must be personcdlv approved bv the 
State Registrar. 

Statutory Authority G.S. l30A-92(7). 

IITLE 21 OCCLPATIONAL LICENSING 
BOARD 

i\ otice is hereby given in accordance with G.S. 
1 50 B- 2 1. 2 that the \orth Carolina State Board 
of Registration for Professional Engineers and 
Land Su/reyors intends to amend rule(s) cited as 
21 NCAC '56 .050 J - .0503, .0601, .0603, .070/, 
.1603 - .1604; and adopt rule(s) cited as 21 
NCAC 56 .1605 - .1607. 

1 he proposed effective dale of this action is 
September I. 1992. 



1 he public hearing will be conducted at 9:00 
a.m. on July 10, 1992 at 3620 Six Forks Road 
Suite 300, Raleigh, NC 27609. 

IXeasons for Proposed Actions: To revise exist- 
ing rules in order to maintain consistency with re- 
cent revisions to G.S. 89C and G.S. 47-30, and to 
adopt new rules to better define the requirements 
of responsible charge and to establish standards 
for Topographic and Global Positioning System 
surveys. 

K^omment Procedures: Any interested person 
may request information, permission to be heard, 
or copies of the proposed regulations by contacting 
Mr. Jerry T. Carter, Executive Secretary, 3620 
Six Forks Road. Suite 300. Raleigh. ,VC 27609, 
Telephone: (9/9) 781-9499. Comment will be 
open for 30 days from the dale of publication. 

CHAPTER 56 - BOARD OF PROFESSIONAL 
ENGINEERS AND LAND SLRVEYORS 

SECTION .0500 - PROFESSIONAL ENGINEER 

.0501 REQLIREMENT FOR LICENSING 

(a) Education. The education of an apphcant 
shall be considered in determining ehgibihty for 
hcensing as a Professional Engineer. The fol- 
lowing terms used by the Board for the specific 
educational requirements to be ehgible to be li- 
censed as a Professional Engineer are defined by 
the Board as follows: 

(1) Engineering Curriculum of Four or more 
Years Approved by the Board: A curric- 
ulum that has been accredited by the Ac- 
creditation Board for Engineering and 
Technology (ABET). 

(2) Engineering or Related Science Curric- 
ulum of Four or more Years Other than 
Ones Approved by the Board: A curric- 
ulum not accredited by ABET but which 
has course work which contains engineer- 
ing or scientific principles such as physics, 
math, chemistry and engineering technol- 
ogy. The Board vvLU determine the ac- 
ceptabiUty of such curriculum on a 
case-by-case basis. 

(3) Equivalent Education Satisfactory to the 
Board: 

(A) A bachelors degree in Engineering 
Technology shall be considered equivalent 
to an engineering or related science cur- 
riculum of four or more years other than 
one approved by the Board. 

(B) /\n associate degree in an engineering 
related curriculum with an additional two 



566 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



years of progressive engineering experi- 
ence shall be considered equivalent to an 
engineering or related science curriculum 
of four or more years other than one ap- 
proved by the Board. 

(C) A diploma from an accredited high 
school with an additional four years of 
progressive engineering experience shall 
be considered equivalent to an engineering 
or related science curriculum of four or 
more years other than one approved by 
the Board. 

(D) Foreign degrees may be considered as 
recommended by the National Council ©f 
Enginooring Examinorc (NCEE) National 
Council of Examiners for Engineering and 
Surve\ing (NCliES) in its publications; 
provided however, maximum equivalency 
granted shall be that of an engineering or 
related science curriculum of four or more 
years other than one approved by the 
Board. 

(b) Experience: 

(1) General. The experience of an applicant 
shall be considered in determining 
whether an applicant is eligible to be li- 
censed as a Professional Engineer. 

(2) Required Experience. In evaluating the 
work experience required the Board will 
consider the total experience record, and 
the progressive nature of the record. (Not 
less than half of required engineering ex- 
perience shaD be of a professional grade 
and character, and should be performed 
under the responsible charge of a regis- 
tered Professional Engineer.) 

(3) Defmition. The terms "progressive engi- 
neering exp>erience" or "progressive expe- 
rience on engineering projects" mean that 
during the period of time in which an ap- 
plicant has made a practical utilization of 
his knowledge he has shown continuous 
improvement, growth and de%elopment in 
his utilization of that knowledge as re- 
vealed in the complexity and technical 
detail of his work product or work record. 
The applicant must show that he has 
continuously assumed greater individual 
responsibility for his work product over 
that period of time. 

(4) Specific Credit for E.xperience. In evalu- 
ating progressi\e engineering experience 
the Board may give credit for experience 
in the following areas of work: 

(A) Graduate schooling or research in an 
appro\ed engineering cumculum - maxi- 
mum two years; 



(B) Progressive land surveying - maximum 
two years; 

(C) Teaching of science or engineering 
subjects at the graduate level in an ap- 
proved engineering curriculum - maxi- 
mum two years. 

(5) Experience Not Considered: 

(A) E.xperience obtained prior to gradu- 
ation while receiving education for which 
credit is given toward registration, unless 
such experience is obtained in a co-op 
program in an engineering curriculum ap- 
proved by the Board. 

(Bj Experience obtained in a foreign coun- 
try unless performed under direct super- 
vision of a registered Professional 
Engineer registered with a member board 
of the National Council e4^ Enuinoijring 
E.xaminoro (NCEE). National Council 
of Examiners for Engineering and Sur- 



vevmg(NCEES). 

Statutory Authority G.S. 89C-/0: 89C-I3. 

.0502 .\PPLIC.\TION PROCEDURE: 
INDIMDL.AL 

(a) General. A person desiring to become h- 
censed as a Professional Engineer must make 
apphcation to the Board on a form prescnbcd 
and furnished by the Board. 

(b) Request. A request for an appropriate ap- 
plication form may be made at the Board ad- 
dress. 

(c) AppUcable Forms: 

(1) Student Form. This form requires the 
applicant to set forth his personal history, 
his educational background, pro\ide 
character references, and furnish a photo- 
graph for identification purposes. The 
form is for use by those graduating, or 
those ha\ing graduated, from an engi- 
neering curriculum appro\ed by the 
Board as follows: 

(A) Students graduating in the same se- 
mester or quarter in which the funda- 
mentals of engineering examination is 
administered. 

(B) Graduates with less than two years 
since graduation. 

(2) Professional Engineer Form: 

(A) All persons, including comity appli- 
cants and graduates of an engineering 
curriculum approved by the Board with 
more than two years progressive engi- 
neering experience, shall apply for regis- 
tration by using the Professional Engineer 
form. The submission of this form will 
signify that the applicant seeks registra- 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



567 



PROPOSED RULES 



tion, and will result in seating for each 
examination required, when the applicant 
is so qualified. This form requires the 
applicant to set forth his personal and ed- 
ucational background, his engineering ex- 
perience and his character references. A 
passport-type photograph for identifica- 
tion purposes is required. 
(B) Persons who have previously completed 
the fundamentals examination by use of 
the Student Form will submit the Profes- 
sional Engineer Form to request registra- 
tion when qualified to take the final 
eight-hour examination. 

(3) Supplemental Form. Persons who ini- 
tially applied for the fundamentals of en- 
gineering exam using the Professional 
Engineer form must supplement their ini- 
tial application upon applying for the 
principles and practice examination. The 
supplemental form requires that engineer- 
ing experience from the date of the initial 
application until the date of the supple- 
mental appUcation be fisted. Five refer- 
ences shall be submitted which are current 
to within one year of the e.xamination 
date. 

(4) Reference Forms: 

(A) Persons applying to take the examina- 
tion for fundamentals of engineering must 
submit to the Board names of three indi- 
viduals who are familiar with the appli- 
cant's work, character and reputation. 
One of these individuals must be regis- 
tered as a Professional Engineer. Persons 
applying to take the examination for 
prmciples and practices of engineering 
must submit to the Board names of five 
individuals who are familiar with the ap- 
plicant's work, character and reputation. 
1 wo of these individuals must be regis- 
tered Professional Engineers. 

(B) In addition to the applicant submitting 
names to the Board of individuals familiar 
with the applicant's work, character and 
reputation, those individuals listed are re- 
quired to submit to the Board their eval- 
uation of the applicant on forms supplied 
them by the appficant. Such information 
is considered confidential and will not be 
released by the Board. 

(C) The reference form requires the indi- 
vidual e\aluating the applicant to state the 
evaluating indi\idual's profession, his 
knowledge of the applicant and to state 
other information concerning the appli- 
cant's engineering experience, character 
and reputation. 



(D) The reference forms will be received by 
the applicant when he recei\es his appli- 
cation. The reference forms are then to 
be distributed by the applicant to the per- 
sons listed by him on his appfication as 
references. It is the applicant's responsi- 
bility to see that the individuals listed as 
references return the reference forms to 
the Board prior to the filing deadline for 
the examination. 

(d) Fees: 

(1) Student Form. The registration fee for 
applicants applying for examination on 
the fundamentals of engineering using the 
student form is payable with the filing of 
the application. Once the applicant 
passes the examination on the fundamen- 
tals of engineering, the fee is applied to- 
ward the appUcant's subsequent 
appfication for registration as a Profes- 
sional Engineer using the Professional 
Engineer form. 

(2) Professional Engineer Form. The regis- 
tration fee for applicants applying for the 
examination on the fundamentals of engi- 
neering or the principles and practice of 
engineering using the Professional Engi- 
neer form is payable with the filing of the 
application. 

(3) Comity. The registration fee for appli- 
cants for comity registration is payable 
with the filing of the application. 

(4) Re-Examination. The registration fee for 
any appficant who is re-examined is pay- 
able with the filing of the appfication for 
re-examination. 

(e) The Board will accept the records main- 
tained by the National Council ei Enginooring 
Examinorc i (NCEF) National Council of Exam- 
iners for Engincerino and Surveving (NCEFS) as 
evidence of registration m another state. 

Statutory Authority G.S. S9C-I0; S9C-I3; 
S9C-I4. 

.0503 EXAMINATIONS 

(a) Fundamentals of Engineering. This eight- 
hour written e.xamination is designed primarily 
to test the applicant's proficiency and knowledge 
of the fundamentals of engineering. 

(b) Principles and Practice of Engineering. 
This eight-hour written e.xamination is designed 
to test the appficant's proficiency and knowledge 
of engineering principles and practices. 

(c) E.xamination Aids. Examinees may utilize 
examination aids as specified in pubfished Board 
material furrushed to applicants. 



568 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(d) Preparation of Examination. The exam- 
inations in the fundamentals of engineering and 
in the principles and practice of engineering are 
national examinations promulgated by the >»«- 
iional Co unci] ef Enginijaring EKaniinorc i 
:>.'CEE) National CounciJ of Examiners for En- 



gneering and Suneymg (NCEES) of which the 



Board is a member. 

(e) Examination Sequence. Before the appli- 
cant is permitted to be examined on the princi- 
ples and practice of engineering, the applicant 
must successfully pass the examination on the 
fundamentals of engineering. In no event is an 
applicant allowed to take both examinations at 
the same time or at the same scheduled exam- 
iaation date. 

(f) Examination Eiling Deadline. The appli- 
cant who wishes to take an examination must 
have his completed application (which includes 
all necessary references, transcripts, and verifica- 
tions) in the Board office prior to the Board-- 
established deadline dates. 

(g) Seating Notice. After approval of an ap- 
plication to take either the examination on the 
fundamentals of engineering or principles and 
practice, the applicant will be sent a seatmg no- 
tice. This notice will inform the applicant of the 
exact date, time and location of the examination 
and the seat to which he is assigned. 

(h) L'nexcused Absences. After a seating no- 
tice has been issued for a scheduled examination 
by the Board, and the applicant fails to appear, 
that apphcant's record will reflect "unexcused 
absence" unless the absence was for official jury 
duty or the applicant was not physically able to 
be present, as indicated by a doctor's certificate. 

(i) Oral Inten, iew. During the examination on 
the principles and practice of engineering, the 
applicant may be inten'iewed by Board members. 
The purpose of the mtcrview is to augment the 
evidence submitted in an application with regard 
to education or experience. 

(j) Re-Examination. A person who has failed 
an e.xamination is allowed to apply to take the 
examination again at the next regularly scheduled 
examination period. A person having a com- 
bined record of three failures or unexcused ab- 
sences will not be allowed to take that 
examination ag;iin until a written appeal is made 
to the Board and qualifications for examination 
are reviewed and realTirmed by the Board. The 
applicant must demonstrate to the Board that 
actions have been taken to impro\e the appli- 
cant's chances for passing the exam. 

Statutory Authority G.S. 89C-I0; S9C-13 to 
89C-J5. 



SECTION .0600 - LAND SL R\ EVOR 

.0601 REQUIREMENT FOR MCENSING 

(a) Education. The following terms used by 
the Board for the specific education requirements 
to be eligible to be Ucensed as a Registered Land 
Surveyor are defined by the Board as follows: 

(1) B.S. in Surveying or Other Equivalent 
Curricula. These degrees must contain a 
minimum of 45 semester hours, or their 
quarter-hour equivalents, of subjects di- 
rectly related to the practice of surveying. 
Of the 45 semester hours, a minimum of 
12 semester hours of surveying funda- 
mentals, 12 semester hours of apphed 
surveying practice and 12 semester hours 
of advanced or theoretical surveying 
courses is required. The remainder of the 
required surveying courses may be 
elective-type courses directly related to 
surveying. 

(2) Associate Degree in Surveying Technol- 
ogy. &f Civil Enginoonng Tiichnology 
W^ith SuP i 'oying Option. Thooo dogrooo 
This degree must contain a minimum of 
30 quarter hours, or thL'ir semester-hour 
equivalents, of subjects directly related to 
the practice of surveying. Appropriate 
courses in surveying practices, subdivision 
design and planning, surface drainage and 
photogrammetr>' must be successfully 
completed. 

(^ Education Equi' i olonto Satisfactop . " t» Ae 
Board: 

(A^ ftrSr D e greti m Civil Engintx i ring fvp 
[-'orc' -. tp/. ThL ' GL ' dogrt ' oc . muLit con tarn a 
minimum ef throo i . jme - jtL ' r hour; , e* 
quartor hour e quisul e nt b( bu ' jio -l Un'oy 
tft^ 1» addition, they must contain com 
ploto 00 qu one (JO »f coupjco m mathomatioa 
aft4 t+h* phyoical ricicncL'o a* a*** uoually 
L'xpoctod H* Ai* ftrSr dogrooo. CroJit fH«¥ 
be gis ' on fof oun'oying courooo takon » 
addition te thooo r e quired fof tbe degroo. 
Crodit may be aliowod trt- t4*e Fate e>f eoe 
month r e duction ift the total oKpenonco 
roquiromont a^ dotorminod m G.S. SOC 13 
f»f e ach someoter hour &f approsod crodit. 
¥he ma.\imum cr e dit aliowod is 4-3 
montho' roduction rf (4^ roquirod e xp e ri 
on CO. T** convort quartor houro to w- 
mootor houro. multiply t4>e quartor hours 
by two thirdo. 

fftf iVsoociat e Degr e e m CisU Enginooring 
Tochnology: General Cumculum. This 
dogroo must contain a minimum «*f 44 
quart e r hours b* somoster hour ocjuiv 
alents ef sup i evinc cour ' . ' OS. Crodit may- 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



569 



PROPOSED RULES 



W ui' ie n fof cun e ying courws talcon ift 
aJdition te- thooo requlrod fof Ae dogroo. 
Credit Hwv ^ allosvc ' d at- \\r» Fate ef &fte 
month r e duction ift Ae total exp e rionce 
roquiroment a* dotemiLnL'd i» G.S. 89C 13 
fof ouch ' jL'moc . tor hour ef appro vod orodit . 
¥fe« muxuTium credit allowed j* 4-3 
month ;. ' reduction »f f+H* required experi 
e nc e . ¥e conv e rt quart e r hours t& se- 
mer . ter hourc i , multiply the quarter hours 
hf two thirds. 
(4^ Other Technical ef Engineering ©<*- 
greeo, Corr e[ L . pond e nc e Cours e s aft4 Post 
Secondary Credit o Xe* Resulting » a 
Dogroo. Th e s e Vr4H- be e' . aluatod hf A« 
Board eft a case by case basis aft4 bas e d 
e» A# e' l aluQtion, experience require 
m e nts may fe># reduced by- a maximum 
amount »i ^ months. 

(b) E.xperience: 

(1) Defmition. As used in the North Carolina 
Engineering and Eand Surveying Act the 
term ■'progressive practical surveying ex- 
perience" means that during the period of 
time in which an applicant has made a 
practical utilization of his knowledge of 
the principles of geometry and trigonom- 
etr\' in determining the form, boundaries, 
position and extent of the earth's surface, 
he has shown continuous improvement, 
growlh and development in his utilization 
of that knowledge. In addition, the ap- 
plicant must show that he has contin- 
uously assumed greater individual 
responsibility for his work product over 
that period of time. 

(2) Experience Accepted. In order to ha\e 
experience adequate to comply with the 
requirements of the law, the applicant's 
work experience must be concerned with 
land surveying and is normally gained 
while working under the responsible 
charge of a Registered Land Suneyor. 

(3) Other Experience. Work done in the fol- 
lowing areas require evidence to the Board 
of its equivalency to land sur\'eying: 

(A) construction layout, 

(B) engineering surveying, 

(C) part-time surveying work. 

(c) Exhibits, Drawings, Plats; 

(1) Required Exhibit Before Fundamentals 
of Land Surveying Examination. The 
applicant must submit, along with his ap- 
plication, an actual plat or an example 
plat which discloses that the apphcant is 
knowledgeable in the elements of good 
mapping practices. 



(2) Required Exhibit Before Principles and 
Practices of Land Surveying Examination: 

(A) General. The applicant must submit, 
along with his application, an actual plat 
of a boundary survey of an actual project 
which discloses that the applicant is 
knowledgeable of the contents of the 
Standards of Practice for Land Surveying 
in North Carolina (Section .1600) and 
also is able to apply this knowledge by 
preparing a plat in accordance with the 
various legal and professional require- 
ments of land sur\'eying. 

(B) Physical Requirement. The map sub 
mitted must be a clean, clear legible print 
of an original map in the fde of a Regis- 
tered Land Surveyor. 

(3) Sp>ecific Requirements. The specific de- 
tails that will be evaluated are those ap- 
plicable to the particular project as 
described in the Standards of Practice for 
Land Surveying in North Carolina (Sec- 
tion .1600) and as described in G.S. 47-30. 
In addition, the exhibit sh;dJ contain a 
statement that the field work, calculation 
and mapping was performed by the ap- 
plicant under the supervision of a Regis- 
tered Land Sur\eyor, attested to by the 
Registered Land Surveyor. 

(4) Requirements for Comity Applicant. The 
map submitted by an apphcant under 
comity may be a sample plat of a project 
or work performed in his state of registra- 
tion which will be evaluated in accordance 
with legal requirements of North 
Carolina. 

Statutory Authority G.S. 89C-10; 89C-I3; 4'-30. 

.0603 EX\MIN.\TIONS 

(a) Fundamentals of Land Suneying. This 
eight-hour written examination is designed pri- 
marily to test the apphcant's proficiency and 
knowledge of the fundamentals of land surveying. 

(b) Principles and Practice of Land Surveying. 
This eight-hour written examination is designed 
to test the applicant's proficiency and knowledge 
of land surveying practices and procedures gen- 
erally and specifically within North Carolina. 

(c) Examination Aids. Examinees may utilize 
examination aids as specified in pubhshed Board 
material furnished to apphcants. 

(d) Preparation of Examination. The exam- 
ination in the fundamentals of land surve>ing and 
s e v e n six hours of the examination in the princi- 
ples and practice of land surveying are national 
examinations promulgated by the National 
Council ©f Engineering E?iaminoro (NCEE) Na- 



570 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



tional Council of Examiners for Engineering and 
Surveying (N'CEES) of which the Board is a 
member. Ihe ono hour two-hour North 

Carolina portion of the principles and practice 
of land surveying examination is prepared and 
graded by the Board. 

(e) Examination Filing Deadline. The appli- 
cant who wishes to take an examination must 
have his completed apphcation (which includes 
all necessary references, transcripts, and verifica- 
tions) in the Board office prior to the Board- 
established deadline dates. 

(f) Seating Notice. After approval of an ap- 
plication the applicant will receive a seating no- 
tice. This notice will inform the applicant of the 
exact date, time and location of the examination 
and the seat to which he is assigned. 

(g) Unexcused Absences. After a seating notice 
for a scheduled examination has been issued by 
the Board, and the applicant fails to appear, the 
applicant's record will reflect "unexcused 
absence" unless the absence was for official jury 
duty or the applicant was not physically able to 
be present, as indicated by a doctor's certificate. 

(h) Oral Interview. During the examination 
on the principles and practice of land surveying, 
the applicant may be interviewed by Board 
members. The purpose of the interview is to 
augment the evidence submitted in an apphca- 
tion with regard to education or experience. 

(i) Re-Examination. A person who has failed 
an examination is allowed to apply to take the 
examination again at the next regularly scheduled 
examination period. A person havmg a com- 
bined record of three failures or unexcused ab- 
sences will not be allowed to take that 
examination again until a written appeal is made 
to the Board and the qualifications for examina- 
tion are reviewed and reaffirmed by the Board. 
The applicant must demonstrate to the Board 
that actions have been taken to improve the ap- 
plicant's chances for passing the exam. 

Statutory Authority G.S. 89C-/0: 89C-J5. 

SECTION .0700 - STAND.\RDS OF 
PROFESSIONAL CONDLCT 

.0701 RLLES OF PROFESSIONAL CONDLCT 

(a) In order to safeguard the life, health, prop- 
erty and welfare of the public and to estabhsh 
and maintain a high standard of integrity, skills, 
and practice in the profession of engineering and 
land surveying, the foUowing rules of professional 
conduct are promulgated in accordance with G.S. 
89C-20 and shall be binding upon every person 
holding a certificate of registration as a Profes- 
sional Engineer or Registered Land Surveyor, 



and on all partnerships or corporations or other 
legal entities authorized to offer or perform engi- 
neering or land surveying ser\ices in this state. 

All persons registered under the provisions of 
Chapter 89C of the General Statutes are charged 
with having knowledge of the existence of the 
rules of professional conduct, and shall be 
deemed to be familiar with their several pro- 
visions and to understand them. 

(b) The Professional Engineer and Registered 
Land Surveyor shall conduct his practice in order 
to protect the public health, safety and welfare. 

He shall at all times recognize his primary obli- 
gation to protect the public in the performance 
of his professional duties. If his engineering or 
land sur\'eying judgment is overruled under cir- 
cumstances where the safety, health and welfare 
of the pubhc are endangered, he shall inform his 
employer of the possible consequences and notify 
other proper authorities of the situation, as may 
be appropriate. 

(c) The Professional Engineer and Registered 
Land Surveyor shall perform his services only in 
areas of his competence and: 

(1) Shall undertake to perform engineering 
and land surveying assignments only when 
qualified by education or exp>erience in the 
specific technical field of professional en- 
gineering or land surveying involved. 

(2) May accept an assignment requiring edu- 
cation or experience outside of his own 
field of competence, but only to the extent 
that his services are restricted to those 
phases of the project in which he is qual- 
ified. AH other phases of such project 
shall be performed by qualified associates, 
consultants, or employees. 

(3) Shall not affix his signature or seal to any 
engineering or land surveying plan or 
document dealing with subject matter for 
which he lacks competence by virtue of 
education or experience, nor to any such 
plan or document not prepared under his 
direct supervisory control. Provided, he 
Direct supenisory control (responsible 
charge) requires a registrant or a full-time 
employee to carry out all client contacts, 
provide internal and external financial 
control, oversee employee training, and 
exercise control and supervision over all 
job requirements to include research, 



planning, design, field supcnision and 
work product re\iew. These services may 
not be fulfilled bv a non-registered, con- 
Ihc Professional Fngi- 



tract employee. 

necr and Registered 



Land Sur\'evor may 



affix his seal and signature to drawings 
and documents depicting the work of two 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



571 



PROPOSED RULES 



(4) 



id) 
Land 
in an 
(1) 



(2) 



(3) 



f4) 



Land 
and: 
(I) 



or more professionals pro\ided he desig- 
nates by a note under his seal the specific 
subject matter for which he is responsible. 
In the event a question arises as to his 
comp>etence to jjerform an engineering or 
land surveying assignment in a specific 
technical field of engineering or land sur- 
veying which cannot be otherwise re- 
solved to the Boards satisfaction, the 
Board may require him to submit to an 
appropriate examination as determined by 
the Board. 

The Professional Engineer and Registered 
Surveyor shall issue pubhc statements only 
objective and truthful manner and: 
Shall be completely objective and truthful 
in all professional reports, statements or 
testimony. He shall include all relevant 
and pertinent information in such reports, 
statements or testimony. 
WTien serving as an expert or technical 
witness before any court, commission, or 
other tribunal, shall express an opinion 
only when it is founded upon adequate 
knowledge of the facts in issue, upon a 
background of technical competence in 
the subject matter, and upon honest con- 
viction of the accuracy and propriety of 
his testimony. 

Will issue no statements, criticisms, or ar- 
guments on engineering or land surveying 
matters connected with pubhc pohcy 
which are inspired or paid for by an in- 
terested party, or parties, unless he has 
prefaced his comment by explicitly identi- 
fying himself, by disclosing the identities 
of the party or parties on whose behalf he 
is speaking, and by revealing the existence 
of any pecuniary interest he may ha\e in 
the instant matters. 

Shall not attempt to injure, maliciously 
or falsely, directly or indirectly, the pro- 
fessional reputation, prospects, practice 
or employment of another engineer or 
land surveyor, nor shall he 
indiscriminately criticize another engineer 
or land sur\'cyor's work in pubhc. If he 
beheves that another engineer or land 
sur\'eyor is guilty of misconduct or illegal 
practice, he shall present such information 
to the proper authority for action. 
The Professional Engineer and Registered 
Surveyor shall avoid conflicts of interest 

Shall promptl)" inform his emplo\cr or 
chent of any business association, inter- 
ests, or circumstances which could influ- 



ence his judgment or the quality of his 
services. 

(2) Shall not accept compensation, financial" 
or otherwise, from more than one party 
for services on the same project, or for 
ser\ices pertaining to the same project, 
unless the circumstances are fully dis- 
closed to, and agreed to, by all interested 
parties. 

(3) Shall not solicit or accept financial or 
other valuable considerations from mate- 
rial or equipment supphers for specifying 
their products. 

(4) Shall not sohcit or accept gratuities, di- 
rectly or indirectly, from contractors, their 
agents, or other parties dealing with his 
chent or employer in connection with 
work for which he is responsible. 

(5) When m pubhc sen ice as a member, ad- 
visor, or employee of a governmental 
body or department, shall not participate 
in considerations or actions with respect 
to services provided by him or his organ- 
ization in private engineering and land 
surveying practices. 

(6) Shall not sohcit or accept an engineering 
or land surveying contract from a govem- 
mental body on which a principal or offi- 
cer of his organization serves as a 
member. 

(7) Shall not attempt to supplant another en- 
gineer or land surveyor in a particular 
employment after becoming aware that 
the other has been selected for the em- 
ployment. 

(f) The Professional Engineer and Registered 
Land Surveyor shall solicit or accept work only 
on the basis of his qualifications and: 

(1) Shall not offer to pay, either directly or 
indirectly, any commission, pohtical con- 
tribution, gift, or other consideration in 
order to secure work, exclusive of securing 
salaried positions through employment 
agencies. 

(2) Shall compete for employment on the ba- 
sis of professional qualification and com- 
petence to perform the work. He shall 
not sohcit or submit proposals for profes- 
sional services containing a false, fraudu- 
lent, misleading, deceptive or unfair 
statement or claim regarding the cost, 
quahty or extent of services to be ren- 
dered. 

(3) Shall not falsify or permit misrepresen- 
tation of his, or his associates', academic 
or professional qualifications. He shall 
not misrepresent or exaggerate his degree 
of responsibihty in or for the subject 



3 72 



:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



matter of prior assignments. Brochures 
or other presentations incident to the so- 
licitation of employment shall not mis- 
represent pertinent facts concerning 
employers, employees, associates, joint 
venturers, or his or their past accomphsh- 
ments with the intent and purpose of en- 
hancing his qualifications and his work. 
(g) The Professional Engineer and Registered 
Land Surveyor shall associate only with rep- 
utable persons or organizations and; 

(1) Shall not knowingly associate with or 
permit the use of his name or firm name 
in a business venture by any person or 
firm which he knows, or has reason to 
believe, is engaging in business or profes- 
sional practices of a fraudulent or dishon- 
est nature. 

(2) If he has knowledge or reason to believe 
that another person or firm may be Ln vi- 
olation of any of these provisions or of the 
North Carolina Engineering and Land 
Surveying Act, shall present such infor- 
mation to the Board in writing and shall 
cooperate with the Board in furnishing 
such further information or assistance as 
may be required by the Board. 

(h) A Professional Engineer or Registered Land 
Surveyor whose professional registration is re- 
voked or suspended by another jurisdiction, shall 
be subject to discipline by the Board if the regis- 
trant's action violates Chapter 89C of the North 
Carolina General Statutes or these rules. 

Statutory Authority G.S. 89C-I7: 89C-20. 

SECTION .1600 - STANDARDS OF PRACTICE 

FOR LAND SURNEVING IN NORTH 

CAROLINA 

.1603 CL.ASSIFICATION OF BOUNDARY 
SLRVEYS 

(a) General. Boundary surveys are defined as 
surveys made to establish or to reestablish a 

boundary Ime on the ground, or to obtain data Statutory Authority G.S. 89C-I0; 89C-2I. 
for constructing a map or plat showing a 
boundary line. For the purpose of this Rule the 
term refers to aU surveys, including "loan" or 
"physical" sur\-eys, which in\olves the determi- 
nation or depiction of property lines. Lor the 
purpose of specifying minimum allowable sur- 
veying standards for boundary' surveys, four gen- 
eral classifications of lands in North Carohna are 
established from the standpoint of their real 
value, tax value, or location. Each map shall 
contain a statement of the calculated ratio of 
precision before adjustments. 

(b) Local Control Network Surveys (Class 
AA). Local control network surveys are traverse 



networks utilizing permanent points for the pur- 
pose of estabUshing local horizontal control net- 
works for future use of local sur\eyors. For 
Class AA boundary surveys in North Carolina, 
the angular error of closure shall not exceed ten 
seconds times the square root of the number of 
angles turned. The ratio of precision shall not 
exceed an error of closure of one foot per 20,000 
feet of perimeter of the parcel of land (1:20,000). 

(c) Urban Land Surveys (Class A). Urban 
surveys include lands which normally he within 
a town or city. These lands are usually com- 
mercial property and justify maximum surveying 
accuracy. For Class A boundary surveys in 
North Carolina, the angular error of closure shall 
not exceed 20 seconds times the square root of 
the number of angles turned. The ratio of pre- 
cision shall not exceed an error of closure of one 
foot per 10,000 feet of perimeter of the parcel of 
land (L 10,000). 

(d) Suburban Land Surveys (Class B). Sub- 
urban surveys include lands in or surrounding the 
urban properties of a town or city. The land re- 
presented by these surveys is often valuable; but 
more important, it is land whose value is by de- 
finition rapidly increasing. For Class B bound- 
ary surveys in North Carolina, the angular error 
of closure shall not exceed 25 seconds times the 
square root of the number of angles turned. The 
ratio of precision shall not exceed an error of 
closure of one foot per 7,500 feet of perimeter of 
the parcel of land (1:7,500). 

(e) Rural and Farmland Surveys (Class C). 
Rural and farmland sun eys include lands located 
Ln rural areas of North Carolina and generally 
outside the suburban properties. For Class C 
boundary surveys in North Carolina, the angular 
error of closure shall not exceed 30 seconds times 
the square root of the number of angles turned. 
The ratio of precision shall not exceed an error 
of closure of one foot per 5,000 feet of perimeter 
of the parcel of land (1:5,000). 



.1604 \L\I'I'ING RKQLIRE.MENTS FOR 
BOUNDARY SLRVEYS 

(a) The size of a map shall be such that all de- 
tails can be shown clearly. 

(b) .Vny lines which are not actually surveyed 
must be clearly indicated on the map h^ a brokon 
foe and a statement included revealing the source 
of information from which the hne is derived. 

(c) Any revision on a map after a surveyor's 
seal is affixed shall be noted and dated. 

(d) All surveys based on the North Carolina 
grid system will contain a statement identifying 
the coordinate system used as the North /\meri- 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



573 



PROPOSED RULES 



can Datum of 1983 ("NAD 83") or the North 
American Datum of 1927 ("NAD 27"). 

(e) All plats (maps), unless clearly marked as 
"Preliminary Plat - Not for recordation, 
conveyances, or sales" will be sealed, signed and 
dated by the Registered Land Surveyor and shall 
contain the following: 

(1) An accurately positioned north arrow 
coordinated with any bearings shown on 
the plat. Indication shall be made as to 
whether the north index is true, magnetic, 
North Carolina grid ('NAD 83' or 
'N'.AD27'), or is referenced to old deed or 
plat bearings. If the north index is mag- 
netic or referenced to old deed or plat 
bearings, the date and the source (if 
known) such index was originally deter- 
mined shall be clearly indicated. 

(2) The azimuth or courses and distances as 
oup - oyod of every property line sur\'eved 
shaU be shown. Distances shall be in feet 
or meters and decimals thereof. The 
number of decimal places shall be appro- 
priate to the class of survey required. 

(3) All plat lines shall be horizontal (lovol) 
or North Carolina Grid grid measure- 
ments. All information lines shown on 
the plat shaU be correctly plotted to the 
scale shown. Enlargement of portions of 
a plat are acceptable in the interest of 
clarity, where shown as inserts, eft the 
samo ohoot. Wliere the North Carolina 
grid system is used the grid factor shall be 
shown on the face of the plat. aft4 a de»*- 
ignation as to v i ht'thor hon/ontal ground 
dir . tanooo e* ^44 diotanooo woro uwd. If 
gnd distances are used, it must be shown 
on the plat. 

(4) Where a boundary' is formed by a curved 
line, the following data must be given: 
actual curve sur\'ey data, or as a traverse 
of bearings and distances around the 
curve. If standard curve data is used the 
bearing and distance of the long chord 
(from point of curvature to point of 
tangency) must be shown on the face of 
the plat. 

(5) WTiere a subdivision of kmd is set out on 
the plat, all streets and lots shall be caro 
foli¥ accurately plotted with dimension 
lines indicating widths and all other infor- 
mation pertinent to reestablishing all lines 
in the field. This shall include bearings 
and distances sufficient to form a contin- 
uous closure of the entire perimeter. 

(6) WTiere control comers have been estab- 
lished in compliance with G.S. 39-32.1, 
39-32.2, 39-32.3, and 39-32.4, as amended, 



the location and pertinent information as 
required in the reference statute shall be 
plotted on the plat. All other comers 
which are marked by monument or na- 
tural object shall be so identified on all 
plats, and where practical all comers of 
adjacent owners m along the boundary 
lines of the subject tract which are marked 
by monument or natural object must shall 
be shown. Vritb a diotanoo from eft© e? 
moro ef the subjoot tract's comers. 

(7) The names of adjacent land owners, along 
Vr44t or lot, block, ef parcel, identifior aft4 
subdivision designations or other legal 
reference where applicable, shall be shown 
where they could be determined by the 
surveyor. 

(8) All visible and apparent rights-of-way, 
watercourses, utdities, roadways, and 
other such improvements shall be accu- 
rately located where crossing or forming 
any boundary line of the prop)crty shown. 

(9) WTiere the plat is the result of a survey, 
one or more comers shall, by a system of 
azimuths or courses and distances, be ac- 
curately tied to and coordinated with a 
horizontal control monument of some 
United States or State Agency survey sys- 
tem, such as the National Goodotio S«f- 
vev (formerly U.S. Coa ' jt and Geodetic 
Survey) syotem. North Carolina Geodetic 
Survey, where such monument is within 
2,000 feet of sai4 comer. the subject 
property. Where the North Carolma grid 
system coordinates of said monument are 
on fde in the North Carolina Department 
of Natural Roixuiroefi r^fv^ Community 
Dovolopment. Environment, Health, and 
Natural Resources, the coordinates of 
both the referenced comer and the mon- 
uments used shall be computed aftd 
shown in X (easting) and Y (northing) 
coordinates on the map. plat. The co- 
ordinates shall be identified as based on 
'N.AD 83'. indicatina North American 



Datum of 1983, or as 'N.-VD 27', indicat- 



ing North American Datum of 1927. The 
tic lines to the monuments shall also be 
sufficient to establish true north or grid 
north bearings for the plat if the monu- 
ments exist in pairs. W'ithin a previously 
recorded subdivision that has been tied to 
grid contro 
the 



^ control monuments within 

subdivision may be used in lieu of 

Within a 



additional ties to gnd control, 
previously recorded subdivision that has 
not been tied to grid control, if horizontal 
control monuments are available within 



574 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



2,000 feet, the above requirements shall 
be met; but in the interest of bearms 
consistency with previously recorded 
plats, existing bearing control should be 
used where practical. In the absence of 
Grid Control, »f ' . vithin a pro' i iouoly f«- 
cord e d oubdis'iuion, other appropriate na- 
tural monuments or land marks shall be 
used. In all cases, the tie hncs shall be 
sufficient to accurately reproduce the sub- 
ject lands from the control or reference 
points used. 

(10) A vicinity map (location map) shall ap- 
pear on the face of the plat. 

(11) Each map shall contain the property 
designation, name of owner or prospective 
owner, location (including township, 
county, and state), and the date or dates 
the survey was conducted, m tl*e k4e 
spac e &f Titl e Rlock. In addition each 
map win contain a scale of the drawing 
listed in words or figures, a bar-graph 
when required or necessary, the name, 
address, registration number, and seal of 
the surveyor, the title source, and a legend 
depicting nomenclature. 

(12) Area on all closed surveys is to be com- 
puted by double meridian distance or 
equally accurate method. Area computa- 
tions by estimation, by planimctcr, by 
scale, or by copying from another source 
are not acceptable methods, except in the 
case of tracts containing inaccessible areas 
and in these areas the method of compu- 
tation will be clearly stated. 

Statutory Authority G.S. S9C-/0; S9C-21. 

.1605 CLASSIFICATION OF TOPOGRAPHIC 
SLRVFAS 

(a) General. Topographic surveys are defined 
as the measurement of lands for the purpose of 
plotting the accurate location of existing surface 
and subsuri'ace objects, elevations, and contour 
lines. For the purpose of specifving minimum 
allowable surveying standards, four general clas- 
sifications of topographic sur\-e\s arc established. 

(b) Urban and suburban topographic surveys. 
(Class A). I rban and suburban topographic 
surveys include lands which normally lie within 
or adjoining a town or city. These lands are 
usually commercial properties, subdivisions, 
condominium and tounhouse developments, etc. 
For Class A topographic surveys in North 
Carolina, the \'crtical error in feet shall not exceed 
004 times the square root of the number of miles 
run from the reference datum. 



(c) Other topographic surveys (Class B). Other 
topographic surveys include all lands which are 
not covered by Class A as described in this Rule. 
For Class B topographic surveys in North 
Carolina, the vertical error m feet shall not exceed 
0.10 times the square root of the number of miles 
run from the reference datum. 

(d) fngonometric topographic surveys (Class 
C). Tngonomctnc topographic surveys can be 
used for vertical control for aerial and 
topographic mapping. The \ertical error in feet 
shall not exceed 0.3 times the square root of the 
number of miles run from the reference datum. 

Statutory Authority G.S. 89C-I0; 89C-21. 

.1606 SPECIFIC.VTIONS FOR TOPOGRAPHIC 
SLRVEYS 

(a) The accuracy for all topographic surveys 
shall be determined by the following method: 

The elevation represented by any contour 
line as plotted on the tinal plat shall not 
have a vertical error greater than one-half 
of the mtcrval of the platted contours, (i.e. 
5-foot contour interval = 2.5 feet maxi- 
mum \crtical error.) 

(b) Locations of definite objects such as hori- 
zontal control lines or control points, buildings, 
utilities, roads, walks, trees, boundary, easements 
and setbacks, etc., shall be shown within scaling 



accuracy of and in relationship to the horiy-ontal 
control line, or control pomts and each other. 

Statutory Authority G.S. 89C-J0; S9C-2I. 

.1607 GLOBAL POSITIONING SYSTEM 
SLR\EYS 

(a) General. Global Positioning System (GPS) 
sur\evs are defined as any sur\cv performed by 
using the GPS j-dimensional measurement sys- 
tem based on observations of the radio signals 
of the Department of Defense's NAYS FAR 
( Navigation Satellite liming and Ranging) GPS 
System. All Cil'S surveys peribnned in North 
C'arolina shall be performed by a Registered 
1 and Surve\or licensed in North Carolina in ac- 
cordance with specifications established by the 
Federal Geodetic ('ontrol Committee. 

(b) the Registered I and Surveyor in responsi- 
ble charge of the GI'S survey shall certify, sign 
and seal all prepared documents. \\'hen a map 
or document consists of more than one sheet, 
only one sheet must contain the certificate and 
all others must be signed and sealed, i'he certif- 
icate shall contain the following information: 

(1) Class of G PS survey. 

(2) i'vpe of GPS field procedure (Static, 
Kinematic, Pseudo-Kinematici. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



575 



PROPOSED RULES 



(3) Type of adjustment used. 

(4) Dates of survey. 

(5) 1 \pe and model of GPS receivers used. 
(6| WTiat datum coordinates or geographic 

positions are based on. 
The certificate shall be substantially in the fol- 
louing form: 



I. 



certify that 



this map was drawn under mv supervision 
from an actual GPS survey made under 
mv supen.'ision: that this GPS survey was 

perfonned to FGCC 

specifications and that I used 
. GPS field proce- 
dures and coordmates were obtained by 

adjustment. That 

was performed on 
usma (type) (num- 



this 



ber) of receiN'ers and all coordinates are 



based on 



(c) Prepared documents shall mclude coordi- 



nates of aU monuments and a map showing all 
non-trivial vectors measured. The map shaU also 
contain the foUovymg information: 



( 1) Scale (bar or numerical). 

(2) Legend. 

(3) Loop closures before any adjustment. 

(4) Certification. 

(5) Company name, address and phone 
number. 

Statutory Authority G.S. 89C-/0; 89C-2I. 

TITLE 24 INDEPENDENT AGENCIES 

ly otice is hereby given in accordance with G.S. 
I50B-2I.2 that the North Carolina Housing Fi- 
nance Agency intends to amend rules cited as 24 
NCAC /\f .0101, .020/ - .0205 and adopt rules 
cited as 24 NCAC IM .0206, .0301 - .0306, .0401 
- .0406. 

1 he proposed effective date of this action is 
September I, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on June 30, 1992 at the North Carolina 
Housing Finance Agencv, 3300 Drake Circle, 
Suite 200, Raleigh, NC 27611-3300. 

JXeason for Proposed Action: To update ndes 
and provide additional information on Housing 
Trust Fund program requirements. 



Co 



omment Procedures: Written comments must 
be submitted to the A PA Coordinator by July 15, 



1992. Oral comments may be presented at the 
hearing. 

CHAPTER 1 -N.C. HOUSING FINANCE 
AGENCY 

SUBCHAPTER IM -NORTH CAROLINA 
HOUSING TRUST FUND 

SECTION .0100 - GENERAL POLICY 
GUIDELINES 

.0101 ADOPTION OF CHAPTER 122E BY 
REFERENCE 

(a) The North Carolina Housing Trust and Oil 
Overcharge Act Chapter 122E of the General 
Statutes, and future amendments to the Act are 
adopted by reference under G.S. 1 SOB- 14(c). 
The Act creates the North Carolina Housing 



Partnership (the 'partnership') and establishes 
overall pohcy guidelines for the administration 
of the Housing Trust Fund (the 'Trust Fund'). 

(b) Copies of Chapter 122F may be obtained 
at the North Carolina Housing Finance Agency 
Agency's office, 3300 Drake Circle, Suite 200, 
Raleigh, North Carolina 27607. 

Statutory Authority G.S. I22E-4; J22E-S; 
I22E-8: I50B-14(c). 

SECTION .0200 - GENERAL HOUSING TRUST 
FUND PROGRAM REQUIREMENTS 

.0201 PURPOSE 

TTie purpose of the Housing aft4 Energy Con 
sor i 'ation Inconti>e Pro gram (tfee 'Program') 
Trust Fund is to provide funding to encourage 
the production and rehabilitation of energy effi- 
cient housing for very low-, low- and moderate- 
income households. Program funds The Trust 
Fund win be used both to leverage other fundo 
investments for new housing production or 
comprehensive housing rehabiUtation projects 
and independently for v , oatherii'.ation ener.g^' 
conser\'ation improvements. 

Statutory Authority G.S. 
I22E-4: I22E-5; I22E-8. 



I22A-5: 122A-5.1: 



.0202 ELIGIBILITY 

(a) Fhgible projects under A» program Trust 
Fund programs will include: 

( 1 ) Comprehensive housing rehabilitation 
projects; tl**t- utiligc program fundo fef 
energy cont . ep i ution improv e m e nts afi4 
other funding sourc e s fof A« other roha 
bilitation impro' ie ments; 

(2) Projects that exclusively involve energy 
conservation improvements to existing 
residential structures; 



576 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



(3) New construction projects; Aat utilizo 
program fundo fof the e norgiy 
conoon'ation rolatod el e m e nts »f Ae 
projects aft4 other funding oouroor . fof Ae 
romaindor ef tfee construction; and 

(4) Domonatration Other projects involving 
one or more of the approaches identified 
in Subparagraphs (a) (1), (2) or (3) of this 
Rule. 

(b) Specific activities eligible for financing 
through Trust Fund programs program funds 
will be identified in tbe program apphcation h»- 
torial and funding documents. A portion of the 
program funds Trust Fund may be made avail- 
able for predevelopment costs, program support 
and program administration, as determined by 
the partnership and consistent with the require- 
ments of the Act. 

(c) Eligible applicants for Trust Fund programs 
generally program funds include umts of state 
and local government, pubUc agencies, lead re- 
gional organizations, nonprofit organizations, 
and for-profit developers. FUgible apphcants for 
each specific program funding cvcle will be iden- 
tified in program application documents. Ehgi- 
ble recipients of program funds Irust Fund 
funding must directly operate the program 
funded. 

(d) Housing units assisted under y» program 
Trust Fund programs must be occupied by very 
low-, low- or moderate-income households, as 
defmed in the act. Specific targeting of funds re- 
quired under the each program wiU be identified 
in the program application mat e rials and funding 
documents. 

(e) All rental housing units assisted under the 
program Trust Fund must remain affordable to 
the occupant, target population, as required by 
the Act. Applicants for program funding wiU be 
required to demonstrate how affordabihty wiU be 
maintained. The agency, through its funding 
Qgroomont, documents will include measures to 
help ensure that affordability is maintained. 

(f) Ehgible forms of assistance under Ae pro 
gram Trust Fund programs will include loans, 
grants, combination grant do an s grants and loans 
and other comparable forms of assistance which 
are consistent with the purposes of the Act. 
Loans will be repaid to the Housing Trust Fund. 
The agency »»¥ will estabhsh standards for 
grants and loans in program documents. 

(g) Fligible loan types under Trust F'und pro- 
grams will include predevelopment loans, con- 
struction financing, permanent financing and 
bridge loans. Specific loans available under each 
program will be identified in the program appli- 
cation documents. 



Statutory Authority G.S. J22A-5; 122A-5.I; 
122E-4: 122E-5: I22E-8. 

.0203 APPLICATION PROCEDl RES 

(a) Funding cycles for Trust Fund programs 
program funds wiU be estabhshed on an annu;d 
basis, or more frequently, depending on the need 
for and the availability of funds. Separate fund- 
ing cycles may be utilized for new 
rehabihtation i w e athorLiiation rehabilitation, en- 



ergy 



conser\'ation and demonstration other 



projects. 

(b) The agency will sohcit appUcations for 
Trust Fund programs program funds by advor 
tioing j» newspapers aH4 other media, mailing 
information to eligible applicants [as defined in 
Rule .0202(c) of this Section ) and by other 
methods of public announcement. 

(c) EUgible applicants may apply for funding 
under the program Tmst Fund programs by 
submitting an application to the agency m a 
manner described in the program application 
material documents available from the agency. 
The agency will develop the application material 
documents which will include, but not be limited 
to, a program descnption, apphcation m- 
structions Request for Proposals and ffe# appli- 
cation form(s). aft4 supporting documents. The 
agency H»y will from time to tune amend the 
contents of the apphcation material, documents. 

(d) The agency wUl provide otTer technical as- 
sistance to prospective apphcants to assist them 
in preparing applications for program funds. 
Trust Fund programs. 

Statutory Authority G.S. J22A-5; I22A-5.I; 
I22E-4: J22E-5: J22E-8. 

.0204 SELECTION PROCEDLRES 

(a) In distributing program funds, the partner- 
ship will develop an allocation formula that wiU 
promote the distribution of funds across the state 
based on the following aUocation factors: lower- 
income housing need; an equitable distribution 
of funds among the state's geographic regions; 
and a balance betsseen in the availabdity of funds 
ift between urban and rural areas. 

(b) The agency's evaluation of appUcations for 
funding wiU be based on criteria established for 
each Trust Fund program. AU cntena used to 
evaluate applications will be descnbed in the ap- 
phcation documents, take tate- consideration the 
loUo' i sing cnteria: 

f-14 Consist e ncy »f tfe» application w4rf* Ae 
purposes aft4 requirements »f Ae Aetr 

(^ Consistency »f Ae appUcation witfe A# 
purposes (*«4 requirements ef ti^e Stripper 
W e U I itigation Settlement Agreement; 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



577 



PROPOSED RULES 



(4^ Bonofit te very low aft4 low inoomo 

houi i oholdo; 
f4) ti ' Xtont te- which program fundo afe rocy 

(-§4 I'J.Hpcinjnou fcrf tfe* applicLint aH4 it* a4- 
miiiiutrutivo plan; afi4 
Community liupport fof Ae project. 

_ r~,. rt ."t r-t t 1 7 1 1 ■« I I 1^^ m T ■ n j-t ♦ J^ »-t»-fv « i-^^-t f 






Addrusa spaciul hou ' iing noodo; 

Iixpand opportunitioo ift aroao whoro there 

is a shortag e ef standard aft4 alTordablo 

housing; aft4 
(4) L pgrad e housing currL < ntly failing te mcot 

minimum standards »f health aH4 safoty. 
?^ partiiL'rsliip may establish additional ovalu 
ation criteria. Ali criteria utdiitod fof e valuating 
applications wiii be d e scribed ift th« application 
matenalo 

f4^ AU apphcation information must be sub 
mitt e d befor e the apphcabl e deadlin e . '-i^he 
agency w41i evaluate applications based eft A» 
allocation cateaories ftft4 tbe e valuation criteria 
doscnbed m jiale .n30 . 1(a), (b^ aft4 (^ A44i- 
tional infomiation »ft tbe rosiew process may be> 
pros idod i» tbe program application material. 

(b) fe)- If apphcations received by the applicable 
deadline are insufficient to utilize aU of the funds 
allocated to a funding cycle, geographic region 
and urban or rural area, or other funding cate- 
gory, the partnership, at its discretion, may ex- 
tend the application deadline. Funds allocated 
to a funding category may also be reallocated by 
the partnership, in a maimer defmed by the 
partnership, if the available funds are underuti- 
lized within the category. 

(4^ Upon completion ©f it* rosiow, the agoncy 
wtU d e termin e whether funding approval w4U be 
grtmted »f denied. 44*e agency w4y notify appli 
cants selected fo* funding ift writing ef the 
amount e4 funding assardod aft4 tbe timoframo 
fof the funding award e d afi4 wili provid e addi 
tional info nnat ion about the funding awarded. 
When the agency is unable te approv e a» apph 
cation fe* lunding, it w4ii notify tbe applicant ift 
W ' riting aft4 specify the r e ason fe* tbe denial &i 
funding. 

Statutory Aiithoritv G.S. 1 22 A- 5; 1 22 A- 5.1; 
I22E-4: I22E-5: 122E-8. 

.0205 ADMIMSTR.ATION 

(a) The agency wiU outer iftt© a execute funding 
agreement documents with each appUcant se- 
lected as a Trust lund program recipient. In- 
formation in the agr ee ment documents will 
include, but not be limited to: 
( 1 ) The amount of funding; 



(2) 
(3) 

(4) 



(5) 



(b) 



The obligations of the recipient; 
The terms of the disbursement of funds 
from the Housing Trust Fund; 
The maximum loan or grant amount per 
housing unit assisted with program funds; 
and 

Provisions for the repayment of grants and 
loans to the Housing Trust Fund by re- 
cipients, subrecipients and their successors 
and assigns. 

The agency will periodically review the 
performance of proj e ct program recipients ac- 
cording to the funding agruomont. documents. 
1 his will be done at least annually and may be 
done on a more frequent basis. 

(c) Recipients will submit such periodic reports 
as required by the agency to facilitate the moni- 
toring process. The reports will be described in 
greater detail in the program funding documents. 
The reports will include, but not be limited to, 
progress on the accomplishment of program ob- 
jectives, including information on program ben- 
eficiaries, aft4 data on housing units constructed 
or improved and armual audited financial state- 
ments. 

(d) If the agency fmds there has been substan- 
tial nonperformance under the funding agroomont 
documents and the situation is not corrected 
within a period of time, as established in the 
funding documents, agroomont aft4 aft or notioo 
te- the recipient ef such fmding, the agency may 
terminate ©f modify tbe agreement aft e r written 
notic e is provided. Trust Fund funding or de- 
clare a loan default after following the notifica- 
tion procedures provided for in the funding 
documents. 



Statutory Authority G.S. J22A-5; 
I22E-4; I22E-5; I22E-8. 



122A-5.I; 



.0206 PROGRAM FEES 

(a) The agency may charge reasonable fees to 
administer Trust Fund programs. The fees may 
include but are not limited to apphcation fees, 
funding commitment fees, fees to extend funding 
commitments and program monitoring fees. In- 
terest may also be charged on loans made with 
program funds. 

(b) l"he agency may establish one fee structure 
for pubhc and nonprofit organizations and a dif- 
ferent fee structure for private for-profit individ- 
uals and organizations. 

(c) "The specific fees applicable to each program 
will be described in program apphcation and 
funding documents. 



Statutory Authority G.S. 
J22E-4; I22E-5; I22E-8. 



1 22 A- 5; I22A-5.I; 



578 



7:6 NORTH CAROLINA REGISTER June 15, 1992 









PROPOSED RULES 










SECTION 


.0300 


- HOUSING PRODUCTION 
PROGRAM 


the application 
funding cvcle. 


documents 


for 


each 


prosram 



.0301 GOAL AND OBJECTIVES 

(a) The goal of the Housing Production Pro- 
gram (the 'program') is to increase the supply of 
housing that is affordable to vers' low, low- and 
moderate-income households. 

(b) The objectives of the program are: 

(1) To primarily ser\e low-income house- 
holds; 

(2) To add units to the housing stock that will 
be affordable on a long-term basis; 

(3) To encourage energN'-efficient housing de- 
sign and construction that will lower op- 
erating costs for both homeowners and 
tenants; 

To assist projects that would otherwise 
not be fmanciallv feasible as lower-income 



(41 

(5) 

(61 
121 



housing; 

To assist communities that have not par- 
ticipated in previous Program funding cy- 
cles; 

To achieve an equitable geographic dis- 
tribution of Program funds; and 
To assit projects serving populations with 
special housing needs. 



Statutory Authoritv G.S. I22A-5; I22A-5.I; 
122E-4: I22E-5; I22E-S. 

.0302 ELIGIBILITY REQUIREMENTS 

(a) Both rental and home ownership projects 
are eligible under the program. In addition, eh- 
gible projects are those including: 

(1) New construction; 

(2) Acquisition and rehabilitation; or 

(3) Substantial rehabilitation. 

(b) Program funds may be used for the fol- 
lowing costs: 

(1) Construction costs; 



(2) Preconstruction costs; and 

(3) Other development costs. 

(c) Program financing may include both 
amortizing and deferred payment loans. Loans 
may range from percent interest to the prevail- 
ing market interest rate. Some loans may be 
forgiven. 



(d) Program funds may be provided as: 
(1) Permanent mortgage financing: 



(21 

(21 

(11 

(el 



Construction loans; 
Predevelopmcnt loans; and 
Bridge loans. 



Specific eligibilitv requirements for each 
program funding c\cle may \i\r\-. depending on 
the priorities established for that cvcle. All pro- 
gram eligibihtv requirements will be identified in 



Statutory Authority G.S. I22A-5; I22A-5.I; 
122E-4; I22E-5; I22E-8. 

.0303 THRESHOLD REVIEW CRITERIA 

The agency's evaluation of applications for 
funding will consider the following threshold cri- 
teria: 

(1) The application must be complete and 
submitted on the proper form by the appli- 
cation deadline; 

(2) The application must demonstrate accept- 
able cash How projections sufficient to pay 
debt service, including the program loan, 
and operatmg expenses for the project; 

(3) The apphcation must meet the program el- 
igibility requirements addressing eligible ap- 
plicants, eligible projects, eligible 
households, ehgible uses of funds and eligi- 
ble forms of assistance; 

(4) I'he applicant must control the site by 
ownership, contract to purchase, long term 
lease, or other means acceptable to the 
agency; 

(5) The application must identify the sources 
of both construction and permanent financ- 
ing; 

(6) The application must provide pro forma 
information, in the format required by the 
agency, demonstrating both the affordability 
of the project to eligible households and the 
need for program funds; 

(7) The application must provide evidence that 
the project is consistent with local land use 
plans and development regulations and that 
public and or private infrastructure wiU be 
available to serve the project; 

(8) The apphcation must provide site and 
market information that indicates there will 
be sufficient demand for the project; and 

(9) The applicant must not be under adminis- 
trati\'e restrictions from federal, state or local 
sources. 



Statutory Authority G.S. I22A-5; I22A-5.I; 
I22E-4: I22E-5; I22E-8. 

.0304 R.ANKING CRITERIA 

(a) Applications meeting the threshold re- 
quirements will be ranked within their respective 
areas using a competiti\e point ranking system- 
No more than 25 percent of the total points 
available wiU be awarded under any single crite- 
non. For rental projects the agency will consider 
the following ranking critena: 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



579 



PROPOSED RULES 



ill 



( 1) Project Location. Points will be awarded percent of the total points available will be 

awarded under any sinde criterion. For home 
ownership projects the competitive ranking cri- 
teria vmU include: 

( 1) Project Location. Points will be awarded 
if previous program home ownership 
projects have not been sited in the county 
or city- 
Sponsor Experience. Points will be 
awarded if the pnncipal has successful de- 
velopment expenence for similar types of 
projects including, but not limited to, the 
number of units developed, and the 
avoidance by the principal or 
marketing/sales agent of mortgage de^ 
faults, bankruptcy, adverse fair housing 
disputes, adverse civil rights disputes and 
adverse proceedings and settlements in- 
volving the Department of Housing and 
Urban Development (HUD) or the 
Farmers Home Administration (FmHA). 
AiTordabihty. Points vvill be awarded 
based on the affordabihty of the units to 
ehgible households, the replacement cost 
of the homes and the monthly cost in- 
cluding principal, interest, taxes and in- 
surance (PI ri) of the homes. 
Feasibility. Points will be awarded based 
on the agency's analysis of the economic 
feasibditv of the project usmg criteria in- 
cludmg, but not limited to, the energy ef- 
ficiency of the homes, the amount of the 
downpavment and closing costs to be paid 
by the homebuyers, the projected length 
of time to complete the project, the status 
of zoning and subdivision approval, and 
the status of construction and permanent 
financing. 

Other Contributions. Points wJU be 
awarded based on the percentage of the 
project replacement cost that is derived 
from other below-market-rate sources of 
debt financing and from equity. 
Impacts. Points wUl be awarded based 
relative 



vice coverage 
occupancy rate, 



if previous program rental projects have 
not been sited in the county or city. 

(2) Sponsor Fxpcrience. Points will be 
awarded based on successful development 
expenence for similar types of projects 
including, but not Imiitcd to, the number 
of units de\eloped and the avoidance of 
mortgage defaults or adverse management 
agent proceedings. 

(3) AiTordabihty. Points will be awarded 
based on the affordabihty of the project 
to ehgible households and length of time 
the development will remam affordable to 
low-income households. 

(4) I'easibility. Points will be awarded based 
on the agency's analysis of the economic 
feasibility of the project using factors Ln- 
cludmg. but not limited to, the debt ser- 

ratio, the anticipated 
the projected per umt 
operating costs, the proposed p>er umt 
construction cost, the status of zoning and 
other development pennits and the status 
of construction and permanent financing. 

(5) (Jther Contributions. Points wiU be 
awarded based on the percentage of the 
project replacement cost that is derived 
from other below-market-rate sources of 
debt financing and from equity tinancmg. 

(6) Proiect Impacts. Pomts will be awarded 
based on the relative extent of housing 
needs in the county of the proposed 
project. 

(7) Special Needs. Points will be awarded for 
projects that will serve populations with 
special housing needs includmg the 
homeless, the elderly, persons with disa- 
bilities and large famihes, based on the 
percentage of units reserved for those 
households and the types of services to be 
provided to the households. 
Market. Site and Building Characteristics. 
Points will be awarded based on: the ex 
tent of demand documented by the 
project's market study; if the project helps 
distnbute low-income housing units in the 



01 



til 



t^ 



[81 



on: the ex- (6) 



the 



hou^ 



ing 



needs in the 



community or is part of a neighborhood 
revitali/ation strategy; if the site provides 
good access to employment, shopping, 
ser\'ices and transportation; if there are no 
incompatible land uses impacting the site; 
and based on the quality of the site plan 
and building design, 
(b) Applications for home ownership projects 
meeting the threshold requirements will be 
ranked withm their respective areas using a com- 
petitive point ranking s\stem. No more than 25 



county of the proposed project. 

(7) Special Needs. Points will be awarded for 
projects that will ser\e populations with 
special housing needs including families in 
assisted rental housing, the elderiy, per- 
sons with disabilities and large families, 
based on the percentage of units reserved 
for households with special needs and the 
types of services and the extent of services 
to be provided for the households. 

(S) .Market, Site and Buildmg Characteristics. 
Points will be awarded if the project helps 
distribute low- and moderate-income 



5S0 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



housing units in the community or is an 
integral element of a neighborhood 
revitalization strategy; if the site provides 
good access to employment, shopping, 
services and transportation, if there are no 
incompatible land uses impacting the site; 
and based on the quality of the site plan 
and building design. 



Statutory Authority G.S. 
I22E-4; J22E-5; I22E-8. 



I22A-5; 122A-5.1; 



.0305 AGENCY BOARD APPROVAL 

(a) In its evaluation of applications the agency 
will also analyze the capacity of project owners 
using the following criteria: 

(1) Project owners (organizations and indi- 
viduals) must provide evidence of suffi- 
cient fmancial capacity to successfully 
complete and operate the proposed 
project. 

(2) Project owners, who have defaulted on a 
Federal Housing Administration (FHA) 
insured. Farmers Home Administration 
(FmHA) funded, tax-e.\empt bond funded 
or federaUy subsidized project mortgage m 
the past five years, will be specifically 
identilied in any presentation to the 
agencv board. 



(3) 



14} 



Project proposals will be reviewed by staff 
under alternative operating conditions m- 
cluding, but not limited to. extended 
lease-up of u£ to three years, rent conces- 
sions of u£ to 20 percent and higher op- 
erating costs per unit based on averages 
for other projects in service. 
Project owners may be requested to pro- 
vide fmancial assurances mcluding letters 
of credit or cash escrows that otTsct any 
operating losses that \\iU be sustained by 
the project owner under alternative oper- 
atmg conditions. Financial assurances 
\m11 be required of proiect owners who 
have defaulted on projects identified m 
Subparagraph (a)(2) of this Rule, 
(b) The Agencv will use the cntena established 
in Rules .0303, .0304 of t_his Section and Para- 
graph (a) of this Rule to identif\' those apphca- 
tions to be further analyzed before the fmal 



financing decision is made by the agency's board 
of directors. Selection for financing will be based 
on the agency's underwriting of each remaining 
project. The underwriting \sill include an analy- 
sis of: 

(1) The need and market demand for the 
project; 

(2) The financial feasibility of the project; 

(3) Ihe reasonableness of project costs; 



(4) The project's site plan and building design; 
and 

(5) Ihe need of each project for program 
funds. 



Statutory Authority G.S. 
I22E-4: I22E-5: I22E-8. 



1 22 AS; 122 A- 5. 1; 



.0306 FLNDING COMMITMENT 

(a) Projects selected for rinancing will receive 
a written conditional commitment of program 
funds. The conrunitment will identify all condi- 
tions related to the funding award. The agency 
will charge a commitment fee which will be 
identified in the program application documents. 

(b) After written commitments for all other 
project fmancing have been obtained, the appli- 
cant wiU receive a firm commitment of program 
funds. Ihe firm commitment will identify the 
timeframe for starting and completing the 
project. 

(c) WTien the agency is unable to approve an 
application for fmancing, it will notify the appli- 
cant in writing and specify the reason for the de- 
nial of funding. 



Statutory Authority G.S. 
I22E-4: 122E-5; I22E-8. 



I22A-5: 122A-5.I; 



SECTION .0400 - REHABILIT.\TION 
INCENTIVE PROGRAM 

.0401 GOALS AND OBJECTIVES 

(a) The goal of the Rehabilitation Incentive 
Program (the 'program') is to encourage the re- 
habilitation of housmg occupied by very low-, 
low- and moderate-mcome households by pro- 
viding funding for the energy-related costs asso- 
ciated with comprehensive housing rehabilitation 
projects. 

(b) The objectives of the program are: 

( 1 ) To primarily serve very low- and low- 
income households: 
To involve communities that are under- 



(21 
til 



ine iinai i^\ 



sen.'ed by current programs; 
To achieve an equitable geographic dis- 
tribution of funds in nonmetropoUtan 
areas based on the housing needs of 
lower-income households; 

To encourage comprehensive rehabili- 
tation of housing currently failing to meet 
minimum health and safety st:indards; and 
(5) To provide assistance to both renters and 
homeowners. 

Statutory Authority G.S. /22A-5; I22A-5.I; 
I22E-4: I22E-5: I22E-8. 

.0402 ELIGIBLITV REQLIREMENTS 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



581 



PROPOSED RULES 



(a) The rehabilitation of both owner-occupied 
and rental housing is ehgible under the program. 
Rehabilitated units must meet or exceed local 
housing code standards or, if there is no local 
code, the Housing Quality Stimdards of the L .S. 
Department of Housing and Lrban Develop- 
ment (HID). Rehabihtation uork must also 
meet the program's energy cfTiciency standards. 

(b) Program funds can be used for the follow- 
ing costs: 

( 1 ) fcnergy conservation-related rehabilitation, 
identified in program application docu- 
ments; and 

(2) Program support costs, including staff or 
consultant costs for writmg construction 
specifications, supervising rehabilitation 
work and related support costs. 

(c) Program financing will include both grants 
and deterred payment loans. Home owners may 
receive either grants or deferred payment loans. 
In\cstor owners may receive onlw deferred pay- 
ment loans. Some loans may be foridvcn. 



(d) Specific eligibility requirements for each 
program fundmg cycle may vary, depending on 
the pnonties establishing for that c\cle. .Ail 
program eligibility requu-ements will be identified 
in the application documents for each program 
funding c\cle. 

Statutory Authority G.S. 122A-5; I22A-5.I; 
122E-4: I22E-5: I22E-S. 

.0403 THRESHOLD REVIEW CRITERIA 

Ihe agency's evaluation of applications for 
tundmg will consider the following threshold cri- 
tena: 

( 1) The application must be complete and 
submitted on the proper form bv the appli- 
cation deadlme; 

(2) The pro|cct must meet the program eligi- 
bihty requirements addressing eligible appU- 
cants. eligible projects, eligible households, 
eligible uses of funds and eligible forms of 
assistance; 



(3) The applicant must identify proposed 
sources and amounts of matching funds, al- 
though those funds do not have to be com- 



mitted at the time of application; 

(4) I he application must pro\'ide e\idence of 
local government support for the project; 
and 

(?) Ihe applicant must not be under adminis- 
trative restrictions from federal, state or local 
sources. 

Statutory Authority G.S. I22A-5; /22A-5.J; 
I22E-4; I22E-5: I22E-8. 



.0404 R.ANKING CRITERI,\ 

Apphcations meeting the threshold require- 
ments will be ranked within their respective areas 
using a competitive point ranking system. No 
more than 25 percent of the total pomts available 
will be awarded under any single cnteriom The 
ranking cntena will mclude: ' 

(1) Very Low- and Low- Income Benefit. 
Pomts will be awarded based on the per- 
centage of program funds to be used to 
benefit \-ery low- and low-income hous~ 
holds; 



(2) Special Needs Targetiag. Points will be 
auarded based on the percentage of program 
funds used to serve households with special 
housing needs, such as the homeless, the el- 
derly^ persons with disabilities, and large 
families; 

(3) Rental Housing Targeting. Points wiU be 
awarded based on the percentage of program 
funds to be used to benefit low-income 



renters; 



(4) Other Contributions. Points wiQ be 
awarded based on the extent to which other 
pubhc and pri\-ate funds are used to match 
program funds; 

(5) Needs. Pomts wiU be awarded based on the 
relative housing needs m the count\(ies) to 
be served with program funds; and 

(6) Project Location. Points will be awarded 
based on the extent to which the city or 
countN has been underser\ed in previous 
Tmst Lund program fundmg c\cles. 

Statuton- Authority G.S. 122A-5; J22A-5.I; 
I22E-4: I22E-5: I22E-8. 

.0405 .\GENCY BOARD APPROVAL 

(a) In its e\aluation of applications the agency 
uill also anahze the capacit\" of applicants using 
the following cntena: 

( 1) The expenence of the apphcant in under- 
taking similar types of projects; 

(2) The performance of the applicant, if ap- 
plicable, under previous Trust Lund 
funding cycles; 

(3) The capacity of the organization, including 
adequate operating budget and stalfmg 
support, to complete the project; 

(4) The commitment of the organization to 
providing affordable housing using local 
resources (not federal or state resources); 
and 

(5) Applicants who ha\'e defaulted on a Ped- 
eral I lousing .Administration (LI LA) in- 
sured. Larmers Home Administration 
(PmH.A) funded, tax-exempt bond tunded 
or tederalh subsidized project mortgage in 



582 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



PROPOSED RULES 



the past five years, will be specifically 
identified and may be required to provide 
additional financial assurances, 
(b) The agency wUl use the criteria established 
in RuTes~.Q403, .0404 of this Section and Para- 
graph (a) of this Rule to identify those appUca- 
tions to be further analyzed before the final 
funding decision is made by the agency's board 
of directors. Selection for funding will be based 
on the agency's analysis of each remaining 
project. In addition to criteria identified in this 
Rule, the analysis will include the need of each 
project for program funds, the reasonableness of 
project costs and the relevance of the project to 
the housing needs of the area. 



Statutory Authority G.S. 
I22E-4; I22E-5: I22E-8. 



I22A-5; I22A-5.I; 



.0406 FUNDING COMMITMENT 

(a) Applicants selected for funding will be no- 
tified and provided with a program Funding 
Agreement. 

(b) Prior to executing the Funding Agreement 
the recipient may be required to pro\ide the 
agency with additional information on the pro- 
posed project or to modify the proposed project. 
After the Funding Agreement has been executed 
the recipient's grant will be disbursed in 25 per- 
cent increments. 

(c) When the agency is unable to approve an 
application for funding, it will notify the appU- 
cant in writing and specify the reason for the de- 
nial of funding. 



Statutory Authority G.S. 

I22E-4; I22E-5; I22E-8. 



I22A-5; 122 A- 5.1; 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



5<S3 



LIST OF RULES CODIFIED 



1 he List of Rules Codified is a listing of rules that v;ere filed \<,-ith 0.4 H in the month indicated. 


Kev: 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= .Amend 


RP 


= Repeal 


With Chgs 


— Final text differs from proposed text 


Eff Date 


= Date rule becomes effectrie 


Temp. E.xpires 


= Rule "A-as filed as a temporary rule and expires on this date 



NORTH CAROLINA ADMIMSTRAXrV E CODE 
>UY 1992 



TITLE DEPARTMENT 



TITLE DEPARTMENT 



2 


Agriculture 


4 


Economic and Communit\ 




Development 


10 


Human Resources 


11 


Insurance 


12 


Justice 


13 


Labor 


15A 


Environment, Health, 




and Natural Resources 



16 
17 
21 



25 



Education 

Revenue 

Occupational Liccnsmg 

12 - Board for Contractors 

14 - Board of Cosmetic An Examiners 

17 - Board of Dietetics Nutrition 

36 - Board of Nursing 

Personnel 



Citation 


AD 


AM 


RP 


With 

Chgs 


EfT. 
Date 


Temp. 
E.xpires 


2 \CAC 9L .0509 




• 




• 


0- 01 92 




4 NCAC 2R .0204 - .0205 




• 






0" 01 92 




.0301 - .0302 






• 




0" 01 92 




.0303 


• 






• 


0" 01 92 




.0304 


• 








07 01 92 




.0404 - .0405 




• 






0- 01 92 




.0-01 




• 




• 


0" 01 92 




.0801 






• 




0" 01 92 




.0802 




• 






0" 01 92 




.0805 - .0808 






• 




0"01 92 




.0810 - .0812 






• 




(J- 01 92 




.0X14 - .nsi9 






• 




0" 01 92 




.0820 




• 






0- 01 92 




.0821 - .0823 


• 








0^01 92 




.0901 - .0902 




• 






0" 01 92 





584 



7:6 NORTH CAROLINA REGISTER June 15, 1992 





LIST OF RULES CODIFIED 










Citation 


AD 


AVI 


RP 


With 

Chg.s 


Kfr. 

Date 


Temp. 
Expires 


4 NCAC 2R .0906 










07 01 92 




.0909 


• 








07 01 92 




.1008 








• 


07 01 92 




.1009 


• 








07 01 92 




.1203 










07 01 92 




.1401 - .1402 










07 01 92 




.1407 










07 01 92 




.1503 


• 








07 01 92 




.1701 










07 01 92 




.1703 










07 01 92 




.1704 






• 




07 01 92 




.1707 






• 




07 01 92 




.1708 










07 01 92 




.1710 


• 








07 01 92 




.1801 










07 01 92 




.1803 - .1805 


• 








07 01 92 




.1901 










07 01 92 




.1903 










07 01 92 




2S .0101 










07 01 92 




.0102 








• 


07 01 92 




.0103 










07 01 92 




.0105 










07 01 92 




.0106 - .0107 








• 


07 01 92 




.0108 










07 01 92 




.0202 










07 01 92 




.0205 










07 01 42 




.0218 










07 01 92 




.0220 










07 01 92 




.0221 






• 




07 01 92 




.0227 










07 01 92 




.0229 










07 01 92 




.0232 








• 


07 01 92 




.0233 - .0236 


• 








07 01 92 




.0402 










07 01 92 




.0403 








• 


07 01 92 




.0406 






• 




07 01 92 




.0407 










07 01 92 




.0502 










07 01 92 





7:6 NORTH CAROLINA REGISTER June 15, 1992 



585 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 

Chgs 


EfT. 
Date 


Temp. 
E.xpires 


4 NCAC 2S .0510 




• 






07 01 92 




.0512 - .0514 




• 






07 01 92 




-1)515 






• 




o:'Oi 92 




.0516 




• 






07 01 92 




.0518 ■ .0520 




• 






07 01 92 




.0523 










07 01 92 




.0524 








• 


07 01 92 




.0525 - .0526 










07 01 92 




.0527 








• 


07 01 92 




.0528 










07 01 92 




.0529 








• 


07 01 92 




.0601 






• 




07 01 92 




.0603 






• 




07 01 92 




.0605 • .0611 






• 




0"01 92 




.0612 


• 








07 01 92 




.0703 - .0704 










07 01 92 




.0705 








• 


07 01 92 




.0':0b - .0707 










o:-oi 92 




.o:"08 


• 








0^ 01 92 




.0801 










07.01 92 




.0802 • .0804 






• 




07 01 92 




.0902 - .0903 










0^01 92 




.1001 










0^01 92 




.1004 - .1007 










O-'Ol 92 




.1008 








• 


07 01 92 




.1009 - ,1012 










0^ 01 92 




.1014 










07 01 92 




,1020 








• 


0-7 01 92 




.1101 










07 01 92 




.1103 










O'i'Ol 92 




2T .0101 










07 01 92 




.0201 - .0203 










0-7 01 92 




.0206 


• 








07 01 92 




.0401 








• 


0~ 01 92 




.0409 










0-01 92 




.0501 - .0502 










0- 01 92 




.0602 










0" 01 92 




.0604 








• 


0" 01 92 





586 



7:6 NORTH CAROLINA REGISTER June 15, 1992 





LIST OF RULES CODIFIED 


















Citation 


.\D 


AM 


RP 


With 
Chgs 


Kff. 
Date 


Temp. 
E.vpires 




4 NC.AC 2T ,0605 






• 




07 01 92 






.0607 




• 






07 01 92 






.0608 






• 




07 01 92 






.0610 


• 








07 01 92 






.0702 




• 






07 01 92 






.0704 




• 






07 01 92 






.0707 - .0709 




• 






07 01 92 






.0710 






• 




07 01 92 






.0711 - .0712 










07 01 92 






.0713 - .0714 








• 


07 01 92 






.0715 










07 01 92 






.0716 








• 


07 01 92 






.0717 










07 01 92 






.0901 




• 






07 01 92 






I9L .0403 




• 




• 


06 1)1 92 






.0407 




• 




• 


06 01 92 






10 NC.\C 3J .2801 




• 




• 


06 01 92 






3L .0901 








• 


07 01 92 






.1110 








• 


07 01 92 






.1202 








• 


07 01 92 






220 .0101 










07 01 92 






.0201 










07 01 92 






.0202 








• 


07 01 92 






.0203 - .0205 










07 01 92 






22P .0101 


• 






• 


07 01 92 






.0201 








• 


07 01 92 






26H .0204 










06 01 92 


1 1 30 92 




.0206 










06 01 92 


1 1 30 92 




!1 NCAC 6A .0801 








• 


06 01 92 






.0802 - .0808 










06 01 92 






.0809 








• 


06 01 92 






.0810 - .0811 










06 01 92 






8 .0801 - .0802 








• 


06 01 92 






.0805 










06 01 92 






.0819 - .0820 


• 






• 


06 01 92 






.0821 ■ .0826 


• 








06 01 92 






.0827 


• 






• 


06 01 92 






.0828 - .08.^6 


• 








06 01 92 







7:6 NORTH CAROLINA REGISTER June 15, 1992 



5S7 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


KfT. 
Date 


Temp. 
E.xpires 


11 \c;,\c: 16 .0205 


• 






• 


06 01 92 




.0206 


• 








06 01 92 




12 NCAC lOB .0601 










06 01 92 




.0901 










06 01 92 




13 NCAC 13 .0201 










06 01 92 




.0404 










06 01 92 




15 .0402 










06 01 92 




15A NCAC 2n .0101 










08 03 92 




.0104 










08 03 92 




.0202 










08 03 92 




.0211 










08 03 92 




.0301 










08 03 92 




61 .0006 










07 01 92 




16 NCAC 6G .0401 - .0404 


• 






• 


06 01 92 




r NCAC 4C .0101 




• 






06 01 92 




.1301 










06 01 92 




.1401 - .1403 










06 01 92 




.1501 










06 01 92 




.1601 - .1(.03 










06 01 92 




.1701 - .ro: 










06 01 92 




.1801 - .1803 










06 01 92 




.1901 










06 01 92 




^V. .0101 










06 01 92 




.0125 










06 01 92 




.0201 










06 01 92 




.0301 










06 01 92 




.0713 










06 01 92 




.1101 










06 01 92 




.1123 










06 01 92 




.1501 










06 01 92 




,1602 










06 01 92 




.1905 - .1>)0' 










06 01 92 




.2402 










06 01 92 




.2602 










06 01 92 




.2611 










06 01 92 




.2-02 










06 01 92 




.2801 










06 01 92 




.2901 










06 01 92 





5SS 



7:6 NORTH CAROLINA REGISTER June 15, 1992 





LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chg.s 


FfT. 
Date 


Temp. 
Expires 


17 NCAC 7B .3104 




• 






06 01 92 




.3107 


• 








06 01 92 




.3204 


• 








06 01 92 




.3302 










06 01 92 




.3401 










06 01 92 




.3501 










06 01 92 




.3601 










06 01 92 




.4403 










06 01 92 




.4416 










06 01 92 




.4501 










06 01 92 




.4603 - .4(>04 










06 01 92 




.4618 






• 




06 01 92 




.4619 










06 01 92 




.4701 










06 01 92 




.545S 










06 01 92 




.34(>0 


• 








06 01 92 




21 NCAC 12 .0103 










06 01 92 




.0202 










06 01 92 




.0205 










06 01 92 




.0207 


• 








06 01 92 




.0302 










06 01 92 




.030(> 










06 0! 92 




.0409 








• 


06 01 92 




.0505 - .0506 










06 01 92 




14L .0107 






• 




06 01 92 




14N .0101 - .0103 










06 01 92 




.0104 








• 


06 01 92 




.0105 - ,0106 










06 01 92 




.0107 - .0108 








• 


06 01 92 




.0109 - ,0110 










06 01 92 




.0 1 1 1 








• 


06 01 92 




.0112 - .0114 










06 01 92 




.0201 - ,0202 










06 01 92 




,0301 - ,0302 










06 01 92 




.0401 - ,0402 










06 01 92 




,0501 - ,0502 










06 01 92 




17 onoi 










06 01 92 




,0(102 - ,0005 








• 


06 01 92 





7:6 NORTH CAROLINA REGISTER June 15, 1992 



5S9 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


tfT. 
Date 


Temp. 
E.xpires 


21 NCAC 17 .0006 










06 01 92 




.000" 








• 


06 01 92 




.1)008 










06 01 92 




.0009 








• 


06 01 92 




.0010 - .0011 










06 01 92 




.0013 








• 


06 01 92 




,1)015 








• 


06 01 92 




36 .OlOQ 




• 




• 


06 01 92 




.0301 - .0303 




• 




• 


06 01 92 




.0304 






• 




06 01 92 




.0309 


• 








06 01 92 




.0310 


• 






• 


06 01 92 




.0315 


• 






• 


06 01 92 




.031" 


• 








06 01 92 




.0318 

recodified from 
21 NC-XC 36 
.0309 




• 




• 


0601 92 
05 2" 92 




.0320 

recodified from 
21 NCAC 36 
.0310 




• 




• 


06 01 92 
05 2' 92 




.0321 

recodified from 
21 NCAC 36 

.0315 




• 




• 


06 01 92 
05 2" 92 




.0322 

recodified from 
21 NC-\C 36 
.03 r 




• 






06 01 92 
05 2' 92 




.0323 

recodified from 
21 NCAC 36 

.0318 




• 




• 


06 01 92 
05 2" 92 




.0 324 

recodified from 
21 NCAC 36 
.0320 




• 






06 01 92 

05 2" 92 




25 NCAC ID .0510 - .0512 




• 






06 01 92 




.0515 




• 




• 


06 01 92 




1 H .0602 




• 






06 01 92 




.()()l)4 - .()(i05 




• 






06 01 92 




.0621 




« 






06 01 92 




.0626 




• 






06 01 92 




.0628 




• 




• 


06 01 92 





590 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



LIST OF RULES CODIFIED 



Citation 


Al) 


.AM 


RP 


With 
Chgs 


KIT. 
Date 


Temp. 
E.xpires 


25 


NC.\C 


IJ .1001 - 


.1002 










06 01 92 




.1003 








• 


06 01 92 




.1004 










06 01 92 




.1006 










06 01 92 








.1007 - 


.1008 








• 


06 01 92 




.1009 










06 01 92 




.1010 








• 


06 01 92 




.1011 










06 (11 92 




IL .0203 

_ 




• 






06 01 92 





7:6 NORTH CAROLINA REGISTER June 15, 1992 



591 









RRC OBJECTIONS 












1 


The 
I43B- 


Rules Review 
30.2(c). State 


Commission 
agencies are 


( RRC) objected to 
required to respond 


the follov, 
to RRC as 


'ing 
pro\ 


rules 
ided 


in accordance 
in G.S. J43B-30 


with G.S. 
.2,dj. 


\GRICILHRE 



















I'ood and Drug Protection 

2 .\'C.4C 9L .0509 - Consultant's Educational and E.xperience Reqmnts RRC Objection 

Agency Revised Rule Obj. Removed 

Plant Industry' 

2 .\C.4 C 48.4 .0239 - Permit to Sell Bees RRC Objection 

Agency Revised Rule Obj. Removed 

2 NCA C 4SA .0240 - Form BS- II RRC Objection 

Agency Revised Rule Obj. Removed 

2 SC.4C 4SA .061 1 - Program Participation and Payment of Fees RRC Objection 

.4gency Revised Rule Obj. Removed 

ECONOMIC AND CO.MMLNH V DE\ ELOPMENT 

Banking Commission 

4 SCAC 3C .080^ - Subsidiafy [nveslment Approval RRC Objection 

.4gency Revised Rule Obj. Removed 

4 \CAC 3C .0901 - Books and Records ' RRC Objection 

Agency Revised Rule Obj. Removed 

4 NC.4C 3C .0903 - Retention: Reproduction Disposition of Bank Records RRC Objection 

Agency Revised Rule Obj. Removed 

4 XCAC 3D .0302 - .4dministration of Fiduciary Powers RRC Objection 

Agency Revised Rule Obj. Removed 

4 A'C.-IC 3H .0/02 - Regional Bank Holding Company Acquisitions RRC Objection 

Agency Revised Rule Obj. Removed 



Board of Alcoholic Control 

4 \C.4C 2R .O'^OI - Standards for Commission and Employees 

.4gency Revised Rule 
4 \C.4C 2R .0^02 - Disciplinary .4ction of Employee 
4 XCAC 2 R ./OOS - Conflicts of Interest 

Agency Revised Rule 
4 .\CAC 2R .J 205 - Closing of Store 
4 \C.4C 2S .0/02 - .4pplications for Permits: General Provisions 

.4gency Revised Rule 
4 \CAC 2S .0/06 - Special Requirements for Hotels 

Agency Revised Rule 
4 sXCAC 2S .0503 - Pre-Orders 
4 XCAC 2S .052'^ - Guest Rooms Considered Residence 

Agency Revised Rule 
4 .\C.4C 2S .0529 - Mixed Beverages Catering Permits in 'Dry .4reas' 

Agency Revised Rule 
4 XCAC 2S ./OOS - Advertising of .Malt Bc\erages and Wine by Retailers 



RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



05 2/ 92 
05 21:92 



04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 



04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 
04 /6 92 



05 2/^92 
05 2/ 92 
05 2/ 92 
05 2192 
05 21:92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 
05 2/ 92 



592 



.■6 NORTH CAROLINA REGISTER June 15, 1992 



RRC OBJECTIONS 



Obj. Removed 05,21,92 



Agency Rex'ised Rule 

ommunity Assistance 

NCAC I9L .0/03 - Definitions 

Agency Revised Rule 

SCAC I9L .0403 - Size and Use of Grants Made to Recipients 

Agency Revised Rule 

SCAC 19L .0407 - General Application Requirements 

Agency Rexised Rule 

NCAC 19L .1301 - Definition 

Agency Revised Rule 

avings Institutions Division: Savings Institutions Commission 

NCAC I6F .0001 - Permitted Activities 

Agency Revised Rule 

NCAC 16F .0008 - finance Subsidiary Transactions With Parent 

Agency Revised Rule 

SCAC 16F .0009 - Issuance of Securities by Finance Subsidiaries 

Agency Revised Rule 

SCAC I6F .001 1 - Holding Company Subsidiaries, Finance Subsidiaries 

.Agency Revised Rule 

W IRONMENT, HEALTH, AND NATURAL RESOIRCES 

Coastal Management 

5A SCAC 711 .0306 - General Use Standards for Ocean Hazard Areas RRC Objection 05 21. 92 

nvironmental Management 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04 16 92 
04 16,92 
04 16 92 
05:2F,92 

04 16 92 

05 2f92 
04/6 92 
04 16 92 



04 /6 92 
04 /6;92 
04 16:92 
04, /6 92 
04/6:92 
04, /6;92 
04 16 92 
04 /6I92 



5 A SCAC 2B .0101 - General Procedures RRC Objection 

Agency Revised Rule Obj. Removed 

5A SC.IC 2B .0/04 - Considerations in Assigning Water Supply Class RRC Objection 

Agency Revised Rule Obj. Removed 

5 A SCAC 2B .0202 - Definitions RRC Objection 

Agency Revised Rule Obj. Removed 
5 A SCAC 2B .02/1 - Fresh Surface Water Classifications and Standards RRC Objection 

Agency Revised Rule Obj. Removed 

'5A SCAC 2 B .0301 - Classifications: General RRC Objection 

Agency Revised Rule Obj. Removed 



05 2/ 92 
05 2/ 92 
05 2/:92 
05 2/ 92 
05 2/ 92 
05 2/:92 
05 2/ 92 
05 21 92 
05 2/,92 
05 2/;92 



Radiation Protection 

'5A SCAC / / .03 3S - SpeciCic Terms and Conditions of Licenses 

Agency Revised Rule 
5.4 \CAC // .0339 - Expiration of Licenses 

Agency Revised Rule 

IL>L\N RESOLRCES 

-acility Scnices 

10 SCAC 3 J .280/ - Supen'ision 
Agency Revised Rule 



RRC Objection 04 16 92 

Obj. Removed 04 16 92 

RRC Objection 04 /6 92 

Obj. Removed 04/6 92 



RRC Objection 
RRC Objection 



04 /6 92 
04 16 92 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



593 



RRC OBJECTIONS 



Agency Revised Rule 
10 NCA C 3J .3401 - Applicability - Construction 

Agency Revised Rule 
JO NCAC 3L .0902 - License 

Agency Revised Rule 
JO NC4C 3L .0903 - Application for and Issuance of License 

Agency Revised Rule 
JO NCAC 3L .0904 ■ Inspections 

Agency Revised Rule 
10 NCAC 3L .0905 - Multiple Premises 

Agency Revised Rule 
10 NCAC 3L .1202 - Ca.^e Re\ie\v and Plan of Care 



Mental I Icalth: General 

JO NCAC J4\t .0704 - Program Director 

rsSl RANGE 

Agent Services Division 

// NCAC 6 A .0802 - Licensee Requirements 
Agency Revised Rule 

LABOR 

Ele\ator and Amusement Device 

J 3 .\C4C J 5 .0402 - Responsibility for Compliance 

Agency Revised Rule 
J 3 NCAC 15 .0429 - Co Karts 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 

Cosmetic Art Fxaminers 

21 NC.4C 14N .0107 - Special .Arrangements for Disabled 
.■Igency Revised Rule 

Dietetics Nutntion 

2 J NCAC J7 .0002 - Requirement of License 

Agency Re\'ised Rule 
2 J NCAC J 7 .0003 - Qualifications for Licensure 

Agency Revised Rule 
2 J NCAC 17 .0004 - Applications 

Agency Revised Rule 
2 J NC.4C 17 .0005 - E.xaminalion for Licensure 

Agency Revised Rule 
2 J NCAC 17 .0007 - Provisional License 

Agency Re\'ised Rule 
2J NC.4C 17 .0012 - Smpension. Re\ocalion and Denial of License 

Agency Revised Rule 
21 NCAC J7 .0014 ■ Code of Ethics for Profesuonal Practice Conduct 



Obj. Removed 
RRC Objection 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



05J2JI92 
04;16!92 
04il6i92 
04116192 
04: 16192 
04116192 
04! 16192 
04:16:92 
04,' 1 61 92 
04,16192 
04116192 
04:l6i92 
05,2J;92 



RRC Objection 05,2Jl92 



RRC Objection 05;2J;92 
Obj. Removed 05,21:92 



RRC Objection 04: 1692 

Obj. Removed 05,21:92 

RRC Objection 04 16\92 

Obj. Removed 041J6;92 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
RRC Objection 



05 21,92 
05:21:92 



05i2J<92 
05 21 92 
05 2Ji92 
05 2L92 
05 2 J 92 
05:2J:92 
05 2 J 92 
05. 21, 92 
05: 2 J '92 
05.2J:92 

05 21 92 
05 2J92 
05,21:92 



594 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



RRC OBJECTIONS 



Agency Revised Rule RRC Objection 05 2 J 92 

vursing 

/ NCAC 36 .030/ - Approval Body RRC Objection 05 21 92 

Agency Revised Rule Obj. Removed 05 21 92 

TATE PERSOVSEL 

jffice of State Personnel 

5 NCAC III .0603 - Special Recruiting Programs RRC Objection 05 21. 92 

5 NCAC IJ .1005 - Eligibility for Services RRC Objection 05 21 92 



7:6 NORTH CAROLINA REGISTER June 15, 1992 595 



RULES INVALID A TED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the Sorth Carolina Supreme Court, 
Court of Appeals. Superior Court iwhen available J, and the Office of Administrative Hearings which 
imalidate a rule in the Sorth Carolina Administrative Code. 



25 NCAC IB .0414 - SITUA TIO.XS IN WHICH A TTORNEYS FEES .MA Y BE A WARDED 

Robert Roosc\'clt Reilly Jr.. Administrative Law Judge with the Office of Admimstrative Hearings, de- 
clared Rule 25 NCAC IB .0414 void as applied in William Paul Fearrington, Petitioner v. Un'tversity of 
Sorth Carolina at Chapel Hill. Respondent (91 OSP 0905). 



596 7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



I his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under North 
Carolina's Administrative Procedure Act. Copies of the decisions listed in the index and not 
published are available upon request for a minimal charge by contacting the Office of A dminis- 
trative Hearings, (9/9J 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

BME Board of Medical Examiners 

BMS Board of \1ortuar\' Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distribution Child Support 

DIIR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOE Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EHR 

ESC 
HAF 

IIRC 

IND 

INS 

EBC 

MLK 

NHA 

OAfl 

DSP 

PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Human Relations Commission 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administra- 
tors 

Office of Administrative I leanngs 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and 
I anguage Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



(ASK N AMK 



(ASK 
M MHKR 



Al.l 



I ILKI) 
DATK 



/Vlyce W. Pringle 

V. 

Department of Fducation 



88 OSP 0592 
88 EEO 0*592 



Monian 



03 27 92 



Susie Woodle 

V. 

Department of Commerce, State Ports Authority 



OSP 1411 



Mann 



03 25 92 



Fernando Demeco White 



DHR, Caswell Center 



89 OSP 0284 



West 



01 10 92 



Cathy Faye Barrow 

V. 

DHR. Cra\cn County Health Department 



89 DIIR 0715 



Moraan 



03 09 9: 



Barbara Tri\ette 

V. 

Department of Correction 



90 OSP 0133 



Mors: an 



05 20 92 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



597 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


AEJ 


FILED 
DATE 


Kenneth \V. White 

\ . 

Fmplo>ment Seeurity Commission 


90 OSP 0390 


Becton 


01./ 13/92 


Craig S. Eur> 

V. 

Fmplo\'ment Security Commission 


90OSP0391 


Becton 


01,/ 13/92 


Jolenc H. Johnson 

V. 

DIIR, Division of Medical Assistance 


90 DHR 0685 


Morgan 


02/21/92 


Do\er W. Walker 

V. 

Department of Environment. Health, & Natural Resources 


90 OSP 0S73 

91 OSP 0180 


Chess 


05 0692 


Joseph I-. Nunes 

V. 

l^HR, Duision of Social Ser\'ices, CSH 


90 CSE 1036 


.Morgan 


04 1 5 92 


Sgt. Carl Edmunds 

V. 

DHR. Division of Social Scr\ices, CSF 


90 CSE 1135 


Nesnow 


02 04 92 


Rafael I igueroa 

V. 

I.^UR. Division of Social Services, CSf: 


90 CSE 1138 


Morgan 


03 3(J 92 


Sammic L. Frazicr 

V. 

DHR. Di\ision of Social Scr\'ices, CSE 


90 CSE 1167 


Morgan 


03 24 92 


Richard A. Bo\ett 
DHR. Division of Social Services. CSE 


90 CSE 11S4 


Morgan 


03 30 92 


Lance .McQueen 
DHR. Division of Social Sen'ices. CSF 


90 CSE 1204 


Morgan 


03 30 92 


Kermit Linney 

V. 

Department of Correction 


90 OSP 1380 


Morrison 


02 12 92 


Larry D. Oates 
Department of Correction 


90 OSP 1385 


Becton 


04 06 92 


.\ntomo S. Henderson 

V. 

DHR. Di\ision of Social Scr\-ices, CSE 


90 CSE 1391 


Becton 


05 04 92 


Fernando Guarachi 

V. 

DHR. Division of Social Ser\ices. CSF 


90 CSE 1393 


Morgan 


04 o:^ 92 


Jerry Odell Jolmson 

\ . 

Sheriffs Education & Training Standards Comm 


90 DO J 1411 


Morgan 


01 09 92 


Stonc\ W. <fc Darlcne L. Thompson 

V. 

Department of En\ironment. Health, & Natural Resources 


91 EHR 0003 


West 


01 Of. 92 



598 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 



CASE 
NLMBER 



ALJ 



FILED 
DATE 



Gloria Jones, Mcdbiil 

V. 

Children Special Health Senices 



91 EHR 0142 



Morgan 



03 11 92 



Shonn S. Peek 

V. 

Bd of Trustees Teachers' & St Emp Retirement Sys 



91 DST 0147 



Gray 



04, 16 92 



Wilhe C. Rone 

V. 

DHR, Division of Social Services, CSE 



91 CSE 0166 



Morgan 



04/13:92 



I'homas Such 



EHR and Wilham W. Cobev Jr. 



91 OSP 0202 



Becton 



02,20 92 



N.C. Human Relations Comm. on behalf of Deborah Allen 

V. 

Charles Watkins 



91 HRC 0204 



Morrison 



03, 17 9: 



Cindy Gale Hyatt 

V. 

Department of Human Resources 



91 DHR 0215 



Morean 



02 27,''92 



GListon L. Morriscy 

V. 

Bd of Trustees 'Teachers' & St Emp Retirement Sys 



91 DST 0232 



West 



02 03 92 



Anthony Caldwell 

V. 

Juvenile E\aluation Center 



91 OSP 0259 



Morgan 



03 1 2 92 



Kenneth R. Downs, Guardian of 
Mattie \E Greene 

V. 

Teachers' & St Emp Comp Major Medical Plan 



91 DST 0261 



Gray 



02,20,92 



Deborah W. Clark 

\'. 

DHR, Dorothea Dix Hospital 



91 OSP 0297 



Nesnovv 



01 16 92 



Wade R. Bolton 

V. 

DHR. Division of Social Services. CSE 



91 CSE 0312 



Mann 



01 14 92 



Betty E. Rader 

V. 

Teachers' & St Emp Major Medical Plan 



91 DST 0330 



Morean 



01,10 92 



Marcia Crarpenter 

V. 

INC - Charlotte 



91 OSP 0346 



Mann 



03 12 9: 



James /Vrthur Lee 

V. 

NC Crime \'ictims Compensation Commission 



91 CPS 0355 



Ches 



03,05 92 



Ired A. Wilkie 

V. 

Wildlife Resources Commission 



91 OSP 0398 



Chess 



04 20 9: 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



599 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


Michael Dansin White 

V. 

Department of tnviromncnt, Health, & Natural Resources 


91 OSP0413 


Momson 


02 14 92 


Curtis Wendell Bigelow 

V. 

CCPS, Division of State Higliway Patrol 


91 OSP0418 


West 


03 10 92 


/Vlcoholic Beserage Control Commission 

V. 

Ililsingcr Fnterprises, Inc., t a The Waterin Hole 


91 ABC 0442 


Gray 


01 10 92 


Penny Wliitfield 

V. 

Pitt County .Mental Health Center 


91 OSP 0465 


Gray 


1 08 92 


Senior Citizens' Home Inc. 

V. 

DHR, Di\ision of Facility Senices, Licensure Section 


91 DHR 0467 


Gra\' 


02 18 92 


.Alcoholic Be\crage Control Commission 

V. 

Everett I ee Williams Jr., t a Poor Bo\ s Gameroom 


91 ABC 0531 


.Momson 


01 31 92 


Jonathan Russell .McCra%'ey, t a Hncore 

V. 

.Alcoholic Beverage Control Commission 


91 ABC 0534 


Morrison 


02 04 92 


Doroth\ 'Cris' Crissman 

V. 

Department of Public Instruction 


91 OSP 0581 


.Momson 


04 03 92 


Horace Bntton Askeu Jr. 

V. 

ShenlTs' Education & Training Standards Comm 


91 DO J 0610 


Reilly 


01 22 92 


Roy L. Keever 

V. 

Department of Conection 


91 OSP 0615 


West 


02 26 92 


Ten Broeck Hospital (Patient fflIU5S7, 
.Medicaid =;124-24-4801-C) 

Ten Broeck Hospital (Patient #110538, 
Medicaid =2403342545) 

Ten Broeck Hospital (Patient #110788, 
Medicaid =900- 12-6762-T) 

V. 

DHR, Di\ision of Medical .Assistance 


^51 DHR 0618 
91 DHR 0429 
91 DHR 1265 


.Morrison 


04 OS 92 


Larry .Madison Chatman, t, a Larry s Con\enient Store 

V. 

.Alcoholic Be\erage Control Commission 


41 ABC 0626 


Gray 


02 20 92 


Lester L. Baker Jr. 

V, 

Bd of Trustees Teachers' St I'mployees' Retirement Sys 


91 DST 0639 


Becton 


05 28 92 


Cecil Leon Neal 

V. 

Department of Economic & Coinmunit\- Development 


91 OSP 064S 


Mann 


02 07 92 



600 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 












CASE NAME 


CASE 
NLMBER 


AIJ 


FILED 
DATE 




DAG, Food & Drug Protection Div, Pesticide Section 

V. 

D. Carroll Vann 


91 DAG 0654 


Morrison 


01/15/92 




Kidd's Day Care and Preschool 

V. 

Child Day Care Section 


91 DHR 0666 
91 DHR 0666 


Becton 


03,25/92 
04 10 92 




Mary Tisdale 

V. 

Hyde County Health Department and EUR 


91 EHR0679 


Morgan 


03/23/92 




Alcoholic Beverage Control Commission 

V. 

Kenneth Richard Cooper, t/a Silvers 


91 ABC 0680 


Becton 


02/26/92 




Sarah Linda Hankms 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0688 


Maim 


()2/27/92 




Keith HuU 

v. 

DMR - Division of Medical Assistance 


91 DHR 0707 


Chess 


02,27,92 




Alcoholic Beverage Control Commission 

v. 

Spring Garden Bar & Grill Inc., 

1 A Spring Garden Bar & Grill 


91 ABC 0753 


Morrison 


05,08/92 




Nalle\ Commercial Properties 

v. 

Department of linvironment, Health, & Natural Resources 


91 EHR 0757 


Becton 


05,08,92 




John 1'. Canup 

V. 

DHR, Division of Social Ser\ices, CSE 


91 CSE 0759 


ReiUy 


01 13 92 




Falcon Associates, Inc. 

V. 

Department of Fnvironment, Flealth, & Natural Resources 


91 FUR 0767 
91 F;HR0768 


West 


01 06 92 




Michael I-. Stone 

v. 

Bd of Trustees Local Gov't Fmp Retirement Sys 


91 DSL 0771 


West 


02 24 92 




Ruben Gene McLean 

V. 

/VJcoholic J3c\erage Control Commission 


91 ABC 0772 


Nesnow 


01/30/92 




Bobby McFachem 

V. 

Fayctteville State L"ni\ersity 


91 OSP 0839 


Gray 


02, 0(S 92 




Singletree, Inn 

V. 

FUR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01 16 92 




Henry B. Barnhardt 

V. 

Mt Pleasant Vol Fire L^pt, St Auditor Firemen's 
Rescue Sc^uad Workers' Pension Lund 


91 DSA 0843 


ReiUy 


1 29 92 








7:6 NOR TH CAROLINA REGIS I 


ER June 15, 


1992 


6 


11 



CONTESTED CASE DECISIOIVS 



CASE NAME 


CASE 
MMBER 


AI J 


FILED 
DATE 


Mackey L. HaU 

V. 

DIIR, Di\ision of Social Scr.ices. CSE 


91 CSE 0854 


Reilly 


01 17 92 


Glona J. Woodard 

V. 

Di\-ision of Motor Vehicles 


91 OSP 0855 
91 OSP 0855 


Mann 


04 09 92 
04 13 92 


Ka\ Long 

V. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03 17 92 


Alcoholic Be\erage Control Commission 

V. 

Mack Ra\' Chapman, t a Pondcrosa Lounge 


91 ABC 0887 


.Morrison 


01 31 92 


Joseph W. De\lm Jr., Johnson Brothers Carolina Dist 

V. 

Alcoholic Be\erage Control Commission 


91 ABC 0890 


West 


02 11 92 


Ossie Beard 

V. 

I'HR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03 12 92 


1 homas A. Rittcr 

%•. 

Department of Human Resources 


91 OSP 0907 


-Mann 


05 19 92 


.Alcoholic Be\erage Control Commission 

V. 

Trinity C. C. Inc.. t a Trinity College Cafe 


91 ABC 0915 


West 


02 11 92 


N.C. .Alcoholic Be\erage Control Commission 

V. 

Jessie Pcndcrgraft Rlg^bee, T, A Club 2000 


91 ABC 09 IQ 


West 


03 12 92 


.VlcohoUc Beverage Control Commission 

\\ 

Cedric Warren Fdwards, t a Great. American Food Store 


91 ABC 0923 


Beet on 


02 26 92^ 


Dep.irtment of Lnvironment, Health, & Natural Resources 
Hull's Sandwich Shop. And\ Hull 


91 EHR 0936 


West 


01 09 92 


Betty Davis d b a ABC Academy 

V. 

DHR. Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Morrison 


01 31 92 


J homas J. Hailey 
FHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01 15 92 


Ronald Wa\erly Jackson 

w 

FHR. Division of Maternal & Child Heahh. WIC Section 


91 I HR 0^^63 


Gray 


02 24 92 


Centur\ Care of Laurmburg, Inc. 

\". 

DHR, Di\ision of Facility Ser\'ices. Licensure Section 


01 DHR 0981 


Gra\- 


03 24 92 


James K. .Moss Sr. 
DHR. Division of Social Ser\ices. CSE 


91 CSE 0985 


Reilly 


05 18 92 



602 



7:6 NORTH CAROLINA REGISTER June 15, 1992 





CONTESTED CASE DECISIONS 
















CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 




David J. Anderson 

V. 

DHR, Division of Social Scnices, CSE 


91 CSE 0989 


Morgan 


04/ 20 '92 




Da\id Lee Watson 

V. 

DHR, Division of Social Scnices, CSE 


91 CSE 0992 


Reilly 


05 18 92 




Herbert R. Cla>1on 

V. 

DHR, Division of Soci;il Sen.ices, CSE 


91 CSE 1000 


Mann 


04/02:92 




Roy Shealey 

v. 
Victims Compensation Commission 


91 CPS 1002 


Morrison 


01 31 92 






Joe L. WiUiams Jr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1014 


Morrison 


04 30 92 




Willie Brad Baldwm 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1020 


ReiUy 


01 28 '92 






Clinton Dawson 

V. 

N.C. Department of Transportation 


91 OSP 1021 


Mann 


03 05 92 




Benjamin C. Dawson 

V. 

Department of Correction 


91 OSP 1025 


West 


02 18 92 




Paulette R. Smith 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1026 


Reilly 


02 27 92 






Scot Dawson 

V. 

Department of I ahor 


91 DOE 1031 


West 


02 '24 92 






Luis A. Rosano 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03,03 92 




Elijah Jefferson Jr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1055 


Gray 


04 20 92 




Randy Quinton King 

V. 

CCPS, State Highway Patrol 


91 OSP 1064 


Ciray 


03 24 92 




Ronnie C. Glenn 

V. 

DHR, Division of Social Services, C^SE 


91 CSE 1066 


Nesnow 


05 05 92 




James D. Robinson 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1068 


(}ray 


04 29 92 




William H. llogscd 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1070 


Nesnow 


03 16 92 


















7:6 NOR TH CA ROLINA REGIS 7 


ER June 15, 


1992 


6 


03 



CONTESTED CASE DECISIONS 



CASE NAME 


C.VSE 
NUMBER 


AU 


FILED 
DATE 


Da\id L. Bros\n 

V. 

DUR. Di\ision of Social Scnices. CSE 


91 CSE 1074 


Morrison 


03/31/92 


Donald M. Washington 

V. 

DHR. Division of Social Scnices. CSF, 


91 CSE 1078 


Morrison 


03,04/92 


W'Llliam 1-. Dnscoll 

V. 

DHR. I5i\ision of Social Scnices, CSE 


91 CSE 1080 


Mann 


04/28/92 


Mchin L. Miller Sr. 

V. 

DHR. Di\ision of Social Scnices, CSE 


91 CSE 1084 


Morrison 


03; 16/92 


Bobb_\ G. Evans 

V. 

DHR. Division of Social Scnices, CSE 


91 CSE 1094 


Reilly 


01/13/92 


\\'illjam Louis limmons 

V. 

DHR. Division of Social Scnices. CSE 


91 CSE 1104 


.Mann 


02 18,92 


Gerald Richardson 

V. 

DHR. Division of Social Scnices, CSE" 


91 CSE 1112 


Morgan 


05/06/92 


Edmund D. Hester 

V. 

DHR. Division of Social Scnices. CSE 


91 CSE 1113 


M;mn 


04 21/92 


Ravmond Junior Cagle 

v. 

DHR. Division of Social Scnices, CSE 


91 CSE 1123 


.Mann 


03,30,92 


Richard E. Murrav 

V. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01/13/92 


Pathia .Miller 

V. 

DHR. Division of Eacility Scnices, Child Day Care Section 


Ql DHR 1135 


Mann 


03 31 92 


Atlantic Enterprises, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1136 


Reilly 


01 23 92 


"Ehercsa .\E Sparrow 

V. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


Mann 


02 04,92 


Darrel D. Shields 

V. 

DHR. Division of Social Scnices, CSE 


91 CSE 1141 


Morgan 


03 30 92 


John H. Price 

V. 

DHR. Division of Social Scnices, CSl: 


91 CSE 1142 


.Morgan 


05 06 92 


Jerr\ Dexter Morrison Sr. 

V. 

DHR, Division of Social Scnices. CSE' 


91 CSE 1144 


Nc^no\v 


05 21 02 



604 



:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 












CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 




James A. Hinson 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1154 


Mann 


02 18 92 




George H. Parks Jr. 

V. 

DHR, Division of Social Ser%ices, CSE 


91 CSE 1157 


.Morrison 


01 27 92 




Adrian Chandler Harley 

V. 

DHR. Division of Social Ser\iccs, CSE 


91 CSE 1180 


Ncsnow 


02 10 92 




Billy J. Hall 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1182 


Nesnow 


02 10 92 




Donaldson L. Wooten 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1189 


ReiUy 


03 13 92 




William I'. Reid 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1193 


Nesnow 


02 04 92 




Jeddie R. Bowman 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1195 


Morrison 


04 30 92 




Ronald G Boldcn 

V. 

DHR, Di\ision of Social Senices, CSE 


91 CSE 1208 


Gra\- 


02 26 92 




Wayne Blullip Irby 

V. 

DHR, Di\ision of Social Senices, CSE 


91 CSE 1211 


Ncsnow 


02 04 02 




Tony HoUmgsworth 

\-. 

DHR. Division of Social Senices, CSE 


91 CSE 1212 


Nesnow 


02 10 92 




Charles W. Nonvood Jr. 

V. 

DHR, I^ivision of Soci;d Senices, CSE 


91 CSE 1215 


Mann 


05 19 92 




RusseU G. Ginn 

V. 

Department of Correction 


91 OSP 1224 


ReiUy 


02 14 02 




Angela .McDonald McDougald 

V. 

DHR, Dnision of Social Senices, CSE 


01 CSE 1227 


Nesnow 


02 28 92 




Scring 0. .\lbye 

V. 

DHR. Division of Social Senices, CSE 


91 CSE 122S 


.Mann 


03 1 1 92 




Jimmie McNair, DBA. Pleasure Plus 

V. 

Alcoholic Beverage Control Commission 


')1 ABC 1235 


Gray 


05 04 02 




.Arthur I'homas McDonald Jr. 

V. 

DHR, Division of Social Senices, CSE 


91 CSE 1252 


.Morrison 


03 31 02 








7:6 NOR TH CAROLINA REGIS 7 


ER .June 15, 


1992 


6 


)5 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NIMBER 


AL.I 


FILED 
DATE 


Stanford Tarl Kern 

V. 

DHR, Division of Social Scnices, CSE 


91 CSE 1255 


Ncsnow 


02 04 92 


Cjcne \\'ea\er 

V. 

DHR, Division of Social Scniccs. CSF 


91 CSE 1264 


ReiU.v 


03 25 92 


James r. White 

V. 

DHR, Di\i5ion of Social Scr\iccs, CSE 


91 CSE 1271 


Gray 


02/27.92 


Ronald Brown and Regina Brown 

V. 

DHR. Di\ision of f-acility Services 


91 DHR 1278 


Becton 


02 25 92 


Icrrance Ireeman 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1283 


Nesnow 


05 04 92 


Samuel .Vrmwood 

V. 

David Brantley, Wayne Count) Clerk of Superior Court 


91 CSE 1285 


Rcilly 


02 1 1 92 


Peter Gra\- Cole_\ 

V. 

DHR, I^i\ision of Social Ser\ices, CSl- 


91 CSE 1297 


ReiUy 


04 21 92 


Enos M. Cook 

V. 

DHR, Di\ision of Social Services, CSE 


91 CSE 1303 


Mornson 


04 13 92 


Raymond V'audian 

\-. 

I^HR, Di\ision of Social Services, CSE 


Ql CSE 1304 


ReiUy 


03 09 92 


Stevie \Va\ne ^'ates 

V. 

I'HR and Ihe Jones County Health Department 


91 EHR 1305 


NEimi 


05 29 92 


Stanley Wa\ne Gibbs 

V. 

Elizabeth Cit\ State l'ni\ersit\- 


91 OSF 1318 


Gray 


01 14 92 


David .Martin Strode 

\-. 

DHR, Di\ision of Social Services, CSE 


91 CSE 1327 


Morgan 


03 19 92 


.\lar\- I . Blount 

v. 

I;HR and Hyde Count\- Health Department 


91 EHR 1331 


Reilly 


1)5 21 <52 


.Anthony 1. McNeill 
DHR, Division of Social Services, CSE 


91 CSE 1336 


Becton 


04 20 92 


D, C. Bass 

V, 

Department of Crime Control and PubUc Safety 


91 OSF 1341 


Chess 


04 07 92 


NN'allacc Day Care Center 

V. 

DHR, Division of hacilitv Services 


91 DHR 1343 


Nesnou 


(15 04 92 



6U6 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 






- 


CASE NAME 


CASE 
MMBER 


AU 


FILED 
D.\TE 


Stcvcason M. Bailey 

V. 

McDowell Teclinical Community College 


91 OSP 1353 


Morrison 


01 2892 


Gary N. Rhoda 

V. 

Department of Correction 


91 OSP 1361 


Ncsnow 


01 31 92 


William A. Sellers 

V. 

DHR. Division of Social Services, CSE 


91 CSE 1395 


Gray 


04 01 92 


Marc D. Walker 

V. 

CCPS. Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03 16 92 


Serena Gaynor 

V. 

DHR, Di\ision of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03 02 92 


Betty Davis, D B A ABC Academy 

V. 

DHR, Di\ision of Facility Services, Child Da\- Care Section 


91 DHR 1408 


Chess 


03 30 92 


Bill Jones Jr. and Jessie F. Jones 

V. 

Department of Human Resources 


91 DHR 1411 


Nesnow 


05 01 92 


Lcroy Robmson, Frank's Lounge 

V. 

/Vlcoholic Beverage Control Commission 


91 ABC 1416 


Gray 


05 28 92 


Charles R. WeUons II 

V. 

Department of [:n\ironment. Health, & Natural Resources 


91 EHR 1418 


West 


02 25 92 


Comiie Flowers 

V. 

EHR and Hyde County Health Department 


91 EHR 142U 


ReiUy 


05 21 92 


Charley Joe Milligan 

V. 

Bd of Trustees Local Gov't Emp Retirement Sys 


91 DST 1424 


Gray 


02 27 92 


Roy Blalock, Deborah Eakins, John Gordon Wnght 

V. 

LNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03 13 92 


James R. I ath 

V. 

Crime \'ictims Compensation Commission 


91 CPS 1451 


Morrison 


04 1 5 92 


Janet Thompson 

V. 

DHR, Div Facility Svcs, Durham Cty Dept Social Svcs 


91 DHR 1452 


Gray 


05 19 92 


AB&S Exteriors (rVrthur E. Williams Jr., Pres) 

v. 
Department of Labor, Wage & Hour Di\ision 


92 DO L 0001 


Chess 


05 IS 92 


Ollie Robertson 

V. 

Crime \'ictims Compensation Commission 


92 CPS 0002 


.Morrison 


04 1 5 92 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



607 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


New Bcm-Cra\en County Board of Hducation, 
a Statutor\' Corj^oration of North Carolina 

V. 

The Honorable Harlan E. Boyles, State I'reasurer, 

The Honorable I'rcd W. Talton, State Controller, 

The Honorable William W. Cobey, Jr., Sec. ofFHR, 

Dr. George I. E\'erett, Dir.. Di\'. of Environmental .Miiint. 


92 EHR 0003 


Reilly 


03, 13/92 


hllen Alluood, The Red Bear 1 ounge, Inc., 

4022 North Main St., Higli Point, NC 27265 

\. 

Alcoholic Be\erage Control Commission 


92 ABC 0007 


Chess 


04 07.'92 


Robert Ciooden 

V. 

Department of Labor, Wage & Hour I)i\ision 


92 OOP 0009 


West 


05 14 92 


.Mrs. GiUie L. Edwards, Swift .Mart ^3 

V. 

1:HR. Division of .Maternal & Child Heahh. WIC Section 


92 EHR 0022 


-Morrison 


05 18 92 


Private Protecti\e Services Board 
Robert R. .Missildine. Jr. 


92 DCH 0025 


Becton 


03 23,92 


Cindy G. Bartlett 

\-. 

Department of Correction 


92 OSl' 0029 


Redly 


03 16/92 


Mr. Kenneth 1 . Smith. Pitt County .Mart, Inc. 

\-. 

ITIR, Division of Maternal & Child Health. WIC Section 


92 EHR 0085 


Becton 


04 15 92 


Kurt Hahier 

\. 

N.(^ Retirement S\stem et al. 


92 DSP 0094 


Gra\- 


03 04 92 


.\larg>iret Coggins 

v. 

PHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0095 


Becton 


04 28 92 


Roy Blalock, Deborah Pakins, John Gordon Wnght 

V. 

INC - Chapel IliU 


92 OSP 0096 


Gray 


03 13 92 


Paula Dail 

V. 

PHR, Division of Maternal & Child Health, WIC Section 


92 EHR 0098 


Becton 


04 28 92 


Youth Pocus, Inc. (.MID =^ 23')-23-(JS651) 

v. 

DIIR, Division of Medical Assistance 


92 DIIR 0110 


(iray 


02 26 92 


Charles W. Parker 
Department of Agnculturc 


92 OSP 0177 


ReiUy 


04 27 92 


Potters Industnes, Inc. 

V. 

Wilham J. Stucke\ , St Purchasing OIT, 
& NC Div of Purchase & Contract 


92 DO A 0180 


Nesnow 


05 20 92 



608 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
MMBER 


ALJ 


FILED 
DATE 


Brunswick County 

V. 

Department of Environment, Health, & Natural Resources 


92EHR0195 


Morrison 


04/21/92 


Jessie Draft, Owner Sabrinas Day Care Ctr 

V. 

Department of Human Resources 


92 DHR 0197 


Reilly 


06/01/92 


John Marley Jr. 

V. 

Department of Correction 


92OSP0213 


Reilly 


05/18/92 


N.C. I'nvate Protective Services Board 

V. 

Lawrence Donncll Morrissey 


92 DOJ 0215 


Chess 


05/ 13; 92 


N.C. Private Protective Services Board 

V. 

Sherrill David Beasley 


92 DOJ 0216 


Chess 


05,13/92 










Timothy B. Milton 

V. 

Crime Victims Compensation Commission 


92 CPS 0265 


Reilly 


05 18 92 


Leon Scott Wilkinson 

V. 

Criminal Justice Education & Training Standards Comm 


92 DO] 0280 


West 


04 24 92 


Thomas L. Rogers 

V. 

DHR, Division of Youth Services 


Q2 OSP 0287 


Gray 


04„ 30 92 


Larr) A. Person Sr. 

V. 

Department of Transportation 


92 OSP 0304 


Reilly 


05 28/92 


Paul \L Fratazzi, LPN 

V. 

Polk Youth Institute 


92 OSP 0325 


Ncsnow 


05/01,92 


Robert S. Scheer 

V. 

Department of Crime Control & Public Safety 


92 CPS 0339 


Ciray 


05 18,42 


Junmy Wayne Lisengood 

V. 

Department of Correction 


92 OSP 0352 


Ncsnow 


05/27,92 


Jeffrey .Mark Drane 

V. 

Private Protective Services Board 


92 DOJ 0372 


.Mann 


05, 12/92 


Daimy G. Hicks 

V. 

Pri\ate Protective Services Board 


92 DOJ 0373 


Mann 


05 12 92 


Max Bolick 

V. 

Private Protective Services Board 


92 DOJ 0374 


Mann 


(15 12 92 


Lred Henry Hampton 

v. 

Criminal Justice Education & Training Stds Comm 


92 DOJ 0393 


West 


04 23 92 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



609 



CONTESTED CASE DECISIONS 



STATE OF NORTFI CAROLINA 



COL N TV OF SLRR^ 



IN THE OFFICE OF 
AD.MINISTRATIX E HEARINGS 

90 OSP0I33 



BARBARA IRIXEIIE, 
Petitioner 



N.C. DEPARTMENT OF CORRECIION 

Respondent. 



ORDER OF DISMISSAL 
FINAL DECISION 



Ihis matter comes before the undersigned administrative law judge upon the filing of the Respond 
ent s Motion to Dismiss on March l'', 1990. On .\pnl 12, 1990. the Petitioner filed a document titlec 
Response to .Motion to Dismiss. The Respondent filed an additional argument in support of its .Motior 
to Dismiss on April 27, 1990. In its arguments m support of dismissal, the Respondent states that th 
Petitioner's claims of constructive discharge and the presence of inaccurate and misleading Lnformatioi 
in her personnel file are not properly before the OITice of Administrative Hearings, based upon allegec 
untimeliness in the initiation of her contested case. 1 he Respondent also contends that the Petitionei 
has failed to first pursue her problem or grievance through the Respondent's agenc\ channels as require, 
by statutory law. The Respondent further asserts that the Oftice of Administrati\'e Heanngs does not 
have jurisdiction o\cr this contested case because the Petitioner was not a permanent State employee with 
appeal rights under Chapter 126 of the North Carolina General Statutes. In her Response to .Motion to 
Dismiss, the Petitioner denies the Respondent's contention that the Office of Administrative Hearings 
lacks jurisdiction over this contested case and further argues that the Respondent's contention that it took 
no action against her under N.C.G.S. §126-35 is unsupported in light of the Petitioner's claim of a co 
erced discharge. 

The record of this contested case indicates that the Petitioner became employed by the Respondent 
as of September 1, 1988 as a Correctional Health Assistant II in a new paygrade 62 position at step 3C 
She had pre\iously been employed by the Respondent for a period of 12 months as a Staff Nurse in a 
grade 68 position at Step 1. Ihe Petitioner was suspended from her position with the Respondent on 
July 24, 1989 due to pending criminal charges. In a memorandum dated September 22. 1989, the 
Petitioner resigned from her Correctional Health Assistant II position ctTecti\e September 22, 1989. In a 
letter dated November 27, 1989. the Petitioner indicated that she was tiling a agricvance concerning her 
prior position of employment with the Respondent, since she was asked to resign form employment with 
the Respondent, since she was asked to resign from her position or she would be fired, although she has 
not yet been tried on the criminal charges and had been subsequently found not guilty of all charges in 
a trial conducted on November 8, 1989. The Petitioner filed a Petition for a Contested Case Hearing 
with the Office of Adininistrati\c Hearings on February' 12, 1990, alleging that one of the Respondent's 
officials obtained a letter of resignation from her 'by undue influence, duress, and threats of reprisal.' The 
Petitioner contends that her resignation from her employment u ith the Respondent was m\oluntar>'. 

CONCIISIONS OF LAW 

North Carolina General Statutes Section 126-39 states, in pertinent part; 

'For the purpose of tliis .Article |S|, except for portions subject to competitive service and except 
for appeals brought under G.S. 126-16 and 126-25, the terms 'permanent State cmplo\'ee,' per 
manent employee,' 'State employee' or 'former State empIo\ee as used in this article ^hall mean 
a person 

1. . . . 

2. in a grade 61 to grade 65 position who has been continuously emplo\ed b\' the State ot North 

Carolina for the immediate 36 preceding months. . .' 



610 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



N.C.G.S. §126-25 states, again in pertinent part; 

'. . . An employee, former employee or applicant for employment who objects to material in his 
file because he considers it inaccurate or misleading may seek the removal of such material from 
his file in accordance with the grievance procedure of that department, including appeal to the 
State Personnel Commission.' 

Finally, the pertinent part of N.C.G.S. §126-35 states: 

'No permanent employee subject to the State Personnel Act shall be discharged, suspended, or 
demoted for disciplinar) reasons, except for just cause. . .' (EMPHASIS ADDED) 

These cited statutory provisions are all applicable to the disposition of the motion to dismiss at issue. 
The Petitioner alleges in her Petition for a Contested Case Hearing and discusses in her Response to 
Motion to Dismiss that her resignation was not voluntary, but was instead a 'coerced discharge' which 
was forced by an official of the Respondent. Assuming, arguendo, that the Petitioner's contentions are 
true, then the Petitioner's employment termination was in the nature of a dismissal and not a resignation. 
Title 25, Subchapter ID, Rule .0505 of the North Carolina Administrative Code dcfmes the term 'dis- 
missal' as 'involuntar, separation for cause.' Since the Petitioner has advanced the position that her 
resignation was involuntarily submitted to the Respondent, then such a coerced discharge, if true, con- 
stitutes an act of dismissal by the Respondent. 

The cited provision of N.C.G.S. §126-35 establishes that no permanent emplo\ee subject to the State 
Personnel Act, which is embodied in Chapter 126 of the North Carolina General Statutes, can be dis- 
charged from his or her employment for disciplinary reasons without just cause. As the Respondent has 
raised in its additional argument in support of its motion to dismiss, the Petitioner, as an employee of the 
State in a paygrade 62 position as a Correctional Health Assistant H, must have been continuously em- 
ployed by the State for the 36-month period immediately preceding her separation from employment in 
order to be recognized as a 'permanent employee' as used in N.C.G.S. §126-35 and defined in N.C.G.S. 
§126-39(2) in order to be eligible to appeal this allegedly coerced discharge under the State Personnel Act. 
Ihe record in this contested case shows that the Petitioner became employed as a Correctional Health 
•\ssistant II as of September 1, 1988 and had been pre\iously employed by the Respondent for 12 months 
as a Staff Nurse immediately prior to her 11-month stint as Correctional Health Assistant II. The 
Petitioner therefore had 23 continuous months of employment with the Respondent immediately prior 
to the termination of her employment, which is 13 months less than the minimum 36 months of contin- 
uous employment by the State of North Carolina required under N.C.G.S. §126-39 for the Petitioner to 
be eligible to appeal her alleged coerced discharge under N.C.G.S. §126-35. The Petitioner therefore is 
not entitled to appeal her separation from employment on a theory of coerced discharge, because she is 
not a permanent employee under N.C.G.S. §§126-35 and 126-39 with the right to challenge her termi- 
nation on the basis of a lack of just cause. 

However, the Petitioner has also advanced a theory of the existence of false and misleading infor- 
mation in her personnel file pursuant to N.C.G.S. §126-25. N.C.G.S. §126-39 expressly excepts em- 
ployment appeals brought under N.C.G.S. §126-25 from the requirement that the grievant must be a 
permanent State employee as dcfmcd in N.C.G.S. §126-39 in order to initiate an employment appeal. 
I he Petitioner claims in her petition that her letter of resignation constitutes false and misleading infor- 
mation in her personnel file because the resignation letter was allegedly procured by an otTicial of the 
Respondent through the use of undue influence, duress and threats of reprisal. The Respondent contends 
m its Motion to Dismiss that the Petitioner's inaccurate and misleading information claim under N.C.G.S. 
§126-25 is not a proper one. 

Although the Petitioner may base an employment appeal on N.C.G.S. §126-25 despite her lack of 
status as a permanent State employee, as expressly allowed under N.C.G.S. §126-39, nonetheless the 
Petitioner's reliance on N.C.G.S. §126-25 is misplaced here. The Petitioner is attempting to 'breathe 
life' into a cause of action by utilizing N.C.G.S. §126-25 which she could not otherwise bring under 
N.C.G.S. §126-35 because she is not a permanent employee co\ered by the State Personnel Act; yet, her 
appeal is clearly premised upon an unlawful discharge claim under N.C.G.S. §126-35 as evidenced by the 



7:6 NORTH CAROLINA REGISTER June 15, 1992 611 



CO !\ TESTED CASE DECISIONS 



Petitioner's contentions in her Petition for a Contested Case Hearing and Response to Motion to Di 
miss. The clear intent of N.C.G.S. §126-35 is to afford a State employee, a former State employee ar 
an applicant for State emplo_\ment with a means by which to elmiinate documentation which is mi 
leading or untrue from the indi\idual s personnel file. Assummg, agam arguendo, that the Petition* 
successfully prosecuted this contested case in a hearing on the merits, the outcome of the matter wou! 
be the reinstatement of the Petitioner's employment through the removal of the Petitioner's resignatio 
letter from her personnel fde as inaccurate or misleading information, even though the Petitioner trul 
contests this matter on the basis of unlawful discharge which she otherwise could not bring. 

WTiile a novel and ingenious approach to a cause of action is admirable, nonetheless a petitions 
cannot be allowed to prosecute a contested case which is expressly foreclosed by statute by merel 
claiming that the action is being brought under another statute, )'et all contentions are based upon th 
provisions of the onginal una\ailable statute. Here, the Petitioner's cause of action based on th 
allegation of coerced discharge by the Respondent under N.C.G.S. §126-35 cannot survive the Responc 
ent's motion to dismiss pursuant to N.C.G.S. §126-39 merely because the Petitioner utilizes the 'inacci 
rate and misleading material' language of N.C.G.S. §126-25 while continuing to premise her contested ca: 
on the unavailable ground of unlawful discharge. 

The Petitioner is not a permanent employee as defmed m N.C.G.S. §126-39(2) for the purpose i 
appealing her alleged discharge by the Respondent from its employ. Ihe Respondent's motion to dismi: 
on the ground that the Petitioner is not a permanent State employee for the purpose of .Article 8 o 
Chapter 126 of the North Carolina General Statutes is therefore granted. The Office of Administrativ 
Hearings does not have jurisdiction to entertain this matter. It is unnecessary to address the remainin 
contentions of the Respondent in support of its Motion to Dismiss. 

FINAL DECISION 

This contested case is DlS.MISStD for lack of junsdiction under N.C.G.S. §15UB-36(c)( 1). 

NOTICE 

In order to appeal a final decision, the person seeking re\iew must file a petition with the Superio 
Court of Wake County or w ith the superior court of the county where the person resides. The petitioi 
for judicial review must be fded w ithin thirty da\ s after the person is served with a copy of the final de 
cision. N.C.G.S. §1508-46 describes the contents of the petition and requires scr\ice of the petition oi 
all parties. 

This the 2l)th dav of Mav, 1992. 



Michael Ri\crs Morgan 
Administrati\'e Law Judge 



612 7:6 NORTH CAROLTXA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF MARTIN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 DST 0639 



LESTER L. BAKER, JR., 
Petitioner 



THE BOARD OF TRUSTEES OF THE 
TEACHERS' AND STA I E EMPLOYEES' 
RETIREMENT SYSTEM, 
Respondent 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on December 19, 1991, 
in Raleigh, North Carolina. At the conclusion of the hearing, the parties elected to exercise their right 
to file written submissions as provided for in North Carolina General Statutes section 150B-34(b). The 
record was closed on April 15, 1992. 

APPEARANCES 

For Petitioner: WEAVER & MCBENNET, attorneys at Law, Raleigh, North Carohna; Reagan 

H. Weaver appearing. 

For Respondent: Alexander \tcC. Peters, Assistant Attorney General, North Carolina Department 

of Justice, Raleigh, North Carolina. 

LSSLE 

Whether the Respondent properly denied the Petitioner's application for extended short-term or 
long-term disability benefits. 

From official documents in the file, sworn tcstunony of the witnesses, and other competent and ad- 
missible evidence, the undersigned makes the following: 

FINDINGS OF FACT 



Stipulated Facts 

The Petitioner was involved in a rear end vehicular accident while on Naval Reserve duty on Sep- 
tember 12, 1987. The Petitioner received a whiplash injury to his neck, a contusion to the back of 
his head, and muscle strains in his shoulders, especially the left shoulder. The nature and extent of 
his injury was described on September 12, 1987 as being cervical neck and shoulder strain with pos- 
sible closed head injury. 

2. Prior to the September 12, 1987 coUision, the Petitioner claimed no disability preventing or interfering 
with his abihty to perform his duties as a Motor Equipment Operator I with the North Carolina 
Department of Transportation. 

3. Lhe Petitioner has met all statutory requirements under the North Carolina General Statutes to be 
eligible for consideration of his application for extended short-term disability benefits and or long- 
term disability benefits. 

■\iljuilicatcd Facts 

4. Following his accident, the Petitioner was seen by various military doctors and other physicians and 
therapist for diagnosis and treatment of his neck and shoulder injuries. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



613 



CONTESTED CASE DECISIONS 



5. On March 5, 1988, the Petitioner, on the advice of his treating physicians, attempted to return to wo 

for the Dcpailmcnt of Iransportation (hereinafter 'DO I"). .AJthougli he had been advised bv h 
physicians to abstain from certain tNpes of work, he attempted to perform aU the duties and ri 
sponsibilities of his job. 

6. The Petitioner's job responsibihtics with DO I" included sho\eling and raking asphalt, driving truck 
spraying tar, and operating pa\'ers and rollers. 

7. The strain created b\' raking and shoveling asphalt, dri\ing trucks, especially dump trucks, and tl 
need to constantly turn his head to watch for traffic when operating the paver and roller machin' 
caused the Petitioner to experience difficulty performing his job duties because of the loss of rans 
of motion in his neck and the incapacitating pain he experiences upon mo\ement. 

8. The Petitioner was informed that his employment with DOT could not continue until his physic 
condition impro\'ed to the point that he was able to peribnn all of the duties required by his job. 

9. The Petitioner continued to experience pain and was unable to contmue to perfonn the duties an 
responsibilities of his job. On .May 25, 198S, he ceased his work for the DO T. 

10. The .Medical Board of the Retirement System subsequenth' appro\ed the Petitioner's short-ten 
disabihty as a result of cervical sprain, effective May 26. 1988 to .April 24, 1989, the date he was e> 
amined b\ Dr. I ee .A. XMiitehurst. 

1 1. Gene Hamilton, .M.D., an orthopedic surgeon, examined the Petitioner on three occasions; July 
1988, August 30, 1988, and Pebruary 1, 1989. Dr. Hamilton diagnosed chronic cer\'ical sprain set 
ondary- to automotive trauma and concluded the the Petitioner suffered from a twenty-five percer 
permanent partial disability. lie recommended that the Petitioner seek sedentary^ work. 

12. S. Mitchell Freedman, M.D., a neurologist evaluated the Petitioner on October 3, 1990 and foun 
that he was permanently disabled from performing his job with the DOT because of chronic cer\'ic; 
muscle spasm. Dr. Freedman was of the opinion that because of the Petitioner's chronic pain 
would be extremely difficult and unrealistic to expect the Petitioner to engage in upper bod> muscuk 
acti\ity. 

13. The Petitioner was discharged from the military in August. 1988 with a ten percent permanent parti; 
disabihty. 

14. The Petitioner s military disability rating was increased m Jul_\\ 1991 to twenty percent permaner 
partial disability. 

15. In late October or early No\ember, 1989, the Petitioner submitted his Apphcation for long-Ten 
or Fxtcnded Disability Benefits. 

16. The Respondent's Medical Board is charged with the responsibility of reviewing applications fo 
long-term disability benet"its. together with supporting documents and medical records, to determin 
whether the applicant meets the requirements for such benefits from the Disability Income Plan. 

17. The Petitioners medical records and documentation were rc\icwed by Walter Hunt. M.D., an 
orthopedic surgeon and member of the Respondent's .Medical Boiud. 'I'he .Medical Board s decisioi 
to den\' the Petitioner s application for long-tenn disability benefits was based upon Dr. Hunt 
opinion that the Petitioner's injur}' was not likely to be permanent. 

IS. Dr. Hunt ne\er examined the Petitioner. Dr. Hunt s opinion that the Petitioner's injur\ was no 
likely to be pennanent is based upon his medic:d experience and his belief that according to generall 
accepted medical opinion in orthopedics, cervical muscle strain is not normally a permanent condi 
tion. Dr. Hunt is also of the opinion that there must be some measurable objective e\'idence of paii 
and injur) before a condition can be labelled as likeb' to be permanent. 



614 7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



Dr. Hunt also relied upon a medical report from Dr. Lee A. Whitehurst in reaching the conclusion 
that the Petitioner did not qualify for disability benefits. Dr. Whitehurst evaluated the Petitioner in 
order to render an opinion about his disability as it related to his entitlement to Workers Compen- 
sation benefits. 

0. The standard by which permanent disability is determined for the Respondent is different from the 
standard that is used to determine disabihty for Workers Compensation benefits. 

1. Since his injur>', there are a wide range of personal activities that the Petitioner has been and con- 
tinues to be unable to perform, including but not limited to raking and mowing his yard; playing 
football, volleyball, and horseshoes; horseplay with his son; and activities around the house. 

2. Since May 26, 1988, the Petitioner has been and continues to be physically unable to perform the 
duties required of him as a Machine Operator I for the DOT. 

3. As of August 30, 1988, it appears that the Petitioner's inabihty to physically perfonn the duties re- 
quired of liim as a .Machine Operator I for the DOT is likely to be permanent. 

Based on the foregoing Findings of Fact, the undersigned y\dministrative Law Judge makes the fol- 
DWing: 

CONCI.l SIONS OF I.WV 



The parties are properly before the Office of Administrative Hearings. 

2. Section 135- 106(a) of the North Carolina General Statutes provides that the Respondents Medical 
Board must certify that an applicant for long-term disability benefits has a disability that is hkely to 
be permanent before he may appro\e the application for long-term disability. 

The Respondent's conclusion that since a nonnal cervical strain does not nonnally result in perma- 
nent injury, then the Petitioner's cervical strain could not possibly be pennanent is not supported 
by the facts in this case. 

The Petitioner is not the 'average' cervical strain patient. His case should be decided based on the 
facts presented in his case and not what the facts might be for the 'a\erage' cervical strain patient. 
For the Petitioner, the pain has continued, along with some loss of range of motion. The two doc- 
tors who examined him and testified are both of the opinion that the Petitioner's strain is chronic 
and renders him permanently unable to perform his job duties as a machine operator. Both of the 
Petitioner's doctors. Gene Hamilton and Mitchell Freedman, the Petitioner and his wife, and the 
Petitioner's other witnesses were all very credible. 

The Respondent failed to offer any e\idence that rebuts the Petitioner's e\idcnce that he is no longer 
able to perlbrm his job duties as a Machine Operator 1 as a result of the injuries he recei\ed on 
September 12, 1987 while still an employee of the DOT. 

In fight of both the fact that Dr. Hunt never examined the Petitioner and his belief that only pain that 
can be documented by objective testing is potentially pennanent. Dr. Hunt's testimony that the 
Petitioner is not likely to be permanently disabled to perform his job duties with DO 1' was not as 
credible as the testimony of the Petitioner's doctors that the Petitioner's soft tissue injur> has resulted 
in permanent disabihty. 

7. Ihe Petitioner was and has been continuously disabled since August 30, 1988 and is likely to be 
permanently disabled from the further performance of Iiis duties as an employee of the DO'F where 
he was employed at the time his disabihty was incurred. 

The Respondent acted erroneously when it rejected the Petitioner's application for extended short- 
term disability and long-term disability compensation. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 615 



CONTESTED CASE DECISIONS 



9. 1 he Petitioner has met all statuton' requirements under the North Carolina General Statutes to b 
ehgible for consideration of liis application for extended short-term disability benefits and/or lona 
term disabilit} benefits. 

RFCOMMFNDFn DFCISION 

The Board of Trustees of the Teachers' and State I'mployees' Retirement System will make the Fina 
Decision in this contested case. It is recommended that the Board adopt the findings of fact and Con 
elusions of Law set forth abo\e and pay the Petitioner retroactive ;ind future long-term disability benefit 
effecti\e from the date the Petitioner was first declared permanentl) partially disabled by Gene Hamilton 
.\f D.. that date being August 30, 1988. The Respondent shall deduct from the retroactive amoun 
awarded all short-term benefits recei\ed by the Petitioner after .-\ugust 30, 1988. Said benefits shall con 
tmue to be paid for the indcfmite future, subject to the Respondent's normal procedures and regulations 

NOTICE 

Before the Board makes the FINAL DECISION, it is required by North Carolina General Statute; 
section 150B-36(a) to give each party an opportunity to fde exceptions to this RECOM.MLNDCD DECI 
SION, and to present written arguments to those in the agency who wiU make the tlnal decision. 

The agency is recjuired by North Carolina General Statutes section 150B-36(b) to scr\e a copy ofthf 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record and to the Office o 
Administrative Hearings. 



This the 28th dav of .May, 1992. 



Brenda B Beet on 
Administrati%e Law Judae 



616 7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF HYDE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 EHR 1331 



MARY T. BLOLNT, 

Petitioner 



NC DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATLRAL RESOLRCES, 
and HYDE COUNTY HEALTH 
DEPARTMENT, 

Respondent. 



RECOMMENDED DECISION 



This contested case was commenced by the filing of petition on December 2, 1991. A hearing was 
:onducted in Swan Quarter, North Carolina, on April 14, 1992. The record was held open until .May 
18, 1992 to allow the parties to submit written arguments and proposed findings of fact and conclusions 
flaw. George Thomas Davis, Jr., appeared for the Petitioner. Marjorie S. Canaday, Associate Attorney 
General, appeared for the Respondent. 

Based upon the substantial e\idence admitted, including both sworn testimon> of witnesses and 
locumentary evidence, the undersigned Administrative Law Judge makes the foUowing: 

FINDINGS OF FACT 

1. This contested case arose out of Petitioner's application fded October 24, 1990 for an improvement 
permit to install a ground absorption sewage system on her property on S.R. 1124 near Swan 
Quarter. The system would be used to serve a three-bedroom home. 

2. The site was evaluated on November 10, 1990 by Mr Grady C^ourson, LnNironmental Health 
Specialist, who was at that time employed on a part-time contractural basis b\ the Hyde County 
Health Department ('Health Department'). 

3. It was Courson s opinion that the site could be classified provisionally suitable if fdl was placed 
on the lot, and he advised Petitioner of this. Courson did not issue ;in improvement pennit for 
the site. 

4. Relying on the assurances by Courson, the petitioner purchased the lot for three thousand, five 
hundred doUars ($3,500.00). 

5. On October 10, 1991, Mr. Richard Clav'ton, Regional Environmental Health Specialist, employed 
by the Department of Environment, Health, and Natural Resources ('DEHNR') evaluated the lot 
during a routine training session of an en\ ironniental health specialist intern. 

6. Cla\1on determined that the site was unsuitable for installation of a ground absorption sewage 
system. He recommended to the Health Department that the State Soil Specialist evaluate the site. 

7. On October 29, 1991, Dr. Robert L. Uebler, Soil Specialist, employed by DEHNR, evaluated the 
lot to detemiine its suitabiht\ under the 15A NCAC 18A . 1900 et seq, the laws and rules goscming 
installation of septic tank s\ stems. 

8. Dr. L'ebler is a Soil Specialist emplo)ed by the On-Site Wastewater Section of DEHNR. He acts 
as consultant to the local health departments in eastern North Carolina, including the I lyde 
County Health Department. Dr. L ebler holds a doctorate of philosophy degree in soil physics 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



617 



CONTESTED CASE DECISIONS 



and is qualified to testify as an expert in (1) the physics of soils, (2) disposal and treatment c 
sewage into soils under the laws and rules, and (3) site modification using artificial drainage, an 
(4) alternative systems such as fill systems. 

9. Borings on the site made by Dr. Lebler revealed a soil which is organic from to 25 inches an 
massive at 36 inches, with soil wetness within 12 inches of the natural soil surface. Dr. Lebler 
able to e\aluate the soil by looking at and feeling the soil. He has done this for many years. 

10. Artificial drainage \sould not be etfective on this site due to the organic soil, massive subsoil, an 
soil wetness condition within 12 inches of the natural soil surface. 

11. A system installed in fill could not be expected to function properly on this site due to the organi 
soil and soil wetness condition within 12 inches of the natural soil surface. 

12 Collection of the sewage off-site for treatment and disposal is the only option for this site. 

13. B\ letter dated January 2, 1^W2, the Health Department notified Petitioner that her lot is proper!' 
classified unsuitable for installation of a ground absorption sewage SNStem. Ihe letter also advisee 
Petitioner of her right to appeal to the Office of Administrative Hearings and her right to submi 
documentation pursuant to 15A NCAC ISA .1957(c) to show that in fact a svstem could reason 
ably be expected to function properly on her property. 

14. [Petitioner has not submitted any documentation pursuant to 1 5A NCAC 18A .1957(c). 

Based on the foregoing findings of fact, the undersigned Administrative Law Judge makes the fol 
lowing: 

CONCIt SIGNS OF I AW 

1. The lowest of the uncorrectable site and soil charactenstics determines the o\erall site classificatioi 

for suitability for septic tank installation. 15A NCAC ISA .1947. 

2. Petitioner's site has organic soil from to 25 inches from the natural soil surface which is unsuitablt 

under 15A NCAC ISA .1941(a)(4). The rule provides that organic soils shall be considered un 
suitable. 

3. The site has massi\e structure within 36 inches of the soil surface which is unsuitable under 15A 

NCAC ISA .1941(2)(E). The rule provides, in part, that soils which are massi\e within 36 inches 
of the natural soil surface shall be considered unsuitable as to structure. 

4. I'he site has a soil wetness condition within 12 inches of the natural soil surface wliich is unsuitable 

under 15A NCAC ISA .1942. 'fhe rule provides, in part, that sites where soil wetness conditions 
exist within 36 inches of the natural soil surface shall be considered unsuitable as to soil wetness. 

5. Due to the presence of the organic soils and massive soil structure, the site cannot be modified 
throuah the use of artificial drainage under 15A NCAC ISA .1956(2) or througli the addition of 
till under 15A NCAC ISA .L)57(b). 

6. I he only option under 15.\ NC.\C 18.A .1900 et sec^ is collection of the sewage off-site for treatment 

and disposal. 

7. Respondent used proper procedure and acted as is required by GS 130A-333 et^ sec[ and 1 5A NCAC 

ISA .1900 et se^ in denying Petitioner's application for an improvement permit to install a con- 
ventional ground absorption sewage system on her lot. 

8. 1 he decision of Respondent to deny Petitioner s application for an impro\ement pemiit lor her lot 

on S.R. 1 124 near Swan (Quarter was not arbitran or capricious. 



618 7:6 NORTH CAROLINA REGISTER June 15, 1992 



CONTESTED CASE DECISIONS 



9. Respondent is not prevented from denying Petitioner's application for an improvement permit un- 
der an estoppel theory'. Our courts have consistently held that go\emmentaJ agencies cannot be 
estopped from exercising the police power of the State to protect the pubUc health. See e.g., 
Raleigh v. Fisher, 232 N.C. 629,61 S.E.2d 897(1950). 

Based on the foregoing fmdings of fact and conclusions of law, the undersigned Administrative Law 
udge makes the foUou mg: 

RECOMMENDED DFCISION 

The denial of Petitioner's application for an impro\ement permit to install a conventional ground 
ibsorption sewage system on her lot on S.R. 1 124 near Swan Quarter should be affumed. 

ORDER 

It is hereby ordered that the agency serve a copy of the fmal decision on the Office of Administrative 
learings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
.tatute''l50B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an oppor- 
unity to file exceptions to this recommended decision and to present written arguments to those in the 
igency who will make the fmal decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to ser\e a cops' of the fmal decision on all parties and to 
umish a copy to the parties' attorney of record and to the Ofl'ice of Administrative Heanngs. 

The respondent is the agency that will make the fmal decision m this contested case. 

This the 21thday of May, 1992. 



Robert Roosevelt Reilly Jr. 
Administrative Law Judge 



7:6 NORTH CAROLINA REGISTER June 15, 1992 619 



CO IS' TEST ED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF DLRHAM 



IN THE OFFICE OF 

ADMINISTRATIVE I lEARINGS 

91 DIIR 1452 



JANET niOMI'SON, 
Petitioner 



NORFII CAROLINA nFI'ARIMENT OF 
IILMAN RFSOI RC ES, IMMSION OF 
FACIIIIA SFRMC ES, 
DLRHAM COLN rV DEI' VRIMENL OF 
SOCIAL SER\ ICES, 
Respondent. 



RECOMMENDED DECISION 



This case was heard before Fieecher R. Gray, admuiistrative law judge, on April 13, 1Q92 in Durham 
North Carolina. 

AI'I'EARANCES 

Petitioner: Janet Thompson, appearing pro se 

Respondent: Diane G. .Miller, Tsq. 

ISSUE 

Wliether Respondent's revocation of Petitioner's foster home hcense on grounds of child neglect was 
proper. 

FINDINGS OF FACT 

1. The parties received notices of hearing by certified mail more than fifteen (15) days prior to the 
hearing and so stipulated. 

2. On October 29, 1991, Respondent revoked [Petitioners family foster home license for alleged child 
neglect of a foster child placed in Petitioner's home. The neglect was based on the totality of 
methods used to discipline the foster child, Dclton Dorty, including name calling and making him 
sit in a dark room. 

3. In .July, 1991 the Durham County Department of Social Services recei\ed a report that foster child 
Dclton Dorty, then age eight, was being neglected by his foster parents. Petitioner Janet Thompson 
and her husband James 'Thompson. Child Protective Services Investigator Gail I.^nkford of the 
Wake County Department of Social Services conducted an investigation into the alleged child 
neglect of Dclton Dorty. She interviewed several people during the investigation. 

4. Delton Dorty has multiple psychological disorders, including hyperactivit) and attention deficit 
disorder. Respondent, by and through its witness, Gail 1 ankford, made a judicial admission dur- 
ing her testimonv that Delton i^orty is unreliable as a witness and complainant. Dclton Dorty is 
extremely difficult for an\one to manage, including the Butner Children's Unit, where he now re- 
sides. 

5. Michael Glascock was a resident of Petitioner's home during some of the time Dclton Dorty was 
there. (Jail I angford inter\ie\\ed him dunng her investigation. Michael Glascock is descnbed by 
Gail I.anktord as a disturbed child with a his1or\ of beinu unreliable. 



620 



7:6 NORTH CAROLINA REGISTER June 15. 1992 



CONTESTED CASE DECISIONS 



6. Hasani Lee was in Petitioner's foster home in the summer of 1990 prior to Dchon Dorty's place- 
ment there. Gail Lankford interviewed Hasani Lee about his relationship with Petitioner but did 
not call him as a witness in tliis hearing. 

7. Gail Lankford obser\'ed no evidence of physical marks or injuries to Delton Dorty. 

8. Petitioner has a good reputation with Durham County Department of Social Services for keeping 
the social workers informed with regard to children placed in her foster home. 

9. All evidence produced by Respondent in this contested case concerning methods used by the 
Petitioner to discipline Delton Dorty is based upon hearsay statements made by Delton Dorty, 
Michael Glascock, and Hasani Lee to investigator Gail Lankford. Hasani Lee's statements, in 
addition to being hearsay, are not relevant because he was not in Petitioner's foster home during 
the period when Delton Dorty was there. The statements of Delton Dorty and Michael Glascock, 
in addition to being hearsay, are unrehable because each is a psychologically disturbed child who 
has a histon.' of unrehability. 

10. Respondent has the burden of showing by a preponderance of substantial evidence that it has 
proper grounds to revoke Petitioner's foster home hcense. 

CONCI rSIONS OF I, AW 



Based upon the foregoing fmdings of fact, I make the following conclusions of law. 

1. The parties arc properly before the Office of Administrative Hearings. 

2. Respondent has produced no e\ idcnce in this contested case that Petitioner used improper methods 

of discipUne with Delton Dorty, a child entrusted to Petitioner's care in her foster home. Re- 
spondent has failed to carr\ the burden of proof it must earn,' in order to enforce its decision to 
revoke Petitioner's foster home license. 

RKrOMMKNOKn DFC ISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that 
Respondent rescind its revocation letter of October 29, 1991 to Petitioner and that Respondent s decision 
to revoke Petitioner's foster home hcense be re\ersed for lack of evidence. 

ORDER 

It is hereby ordered that the agency ser\'e a cop\' of the fm;d decision on the OtTice of Administrative 
Hearings, P.O. Drawer 27-t47, Raleiuh, N.C. 27611-7447, in accordance with North CaroUna General 
Statute 15nB-36(b). 

NOTICE 

The agencN' making the final decision in tliis contested case is required to give each party an oppor- 
tunit\- to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to ser\c a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of .\dministrati\c Hearmgs. 



7:6 NORTH CAROLINA REGISTER June 15, 1992 621 



CONTESTED CASE DECISfONS 



The agency that u ill make the final decision in this contested case is the Durham County Department 
of Social Services. 



r 



This the 19th day of May, 1992. 



Beecher R. Gray 
Administrative Law Judge 



622 7:6 NORTH CAROLINA REGISTER June 15, 1992 



NORTH CAROLINA ADMINISTRA THE CODE CLASSIFICA TION SYSTEM 



Tk 



he \orlh Carolina Administrative Code ( XCACJ has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the SCAC is the title. Each 
major department in the North Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
two. subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIMSIONS OF THE NORTH CAROLINA ADMINISTRATrV'E CODE 



ITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certified Public Accountant Examiners 


8 




Development 


Chiropractic Examiners 


10 


5 


Correction 


General Contractors 


12 


6 


Council of State 


Cosmetic Art Examiners 


14 


7 


Cultural Resources 


Dental Examiners 


16 


8 


Flections 


Dietetics Nutrition 


17 


9 


Governor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


19 


11 


Insurance 


Eoresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


1 learing Aid Dealers and Fitters 


22 


14A 


Crime Control and Public Safet) 


landscape /Vrchitects 


26 


15A 


Environment. Health, and Natural 


Landscape Contractors 


28 




Resources 


Martial & Family Therapy 


31 


16 


I'ublic Education 


Medical Examiners 


32 


17 


Revenue 


Mid\vifer>- Joint Committee 


33 


18 


Secretarv of State 


Mortuary Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home Admmistrators 


37 


*21 


Occupational I icensing Boards 


Occupational ITierapists 


38 


22 


Administrative Procedures 


Opticians 


40 


23 


Community Colleges 


Optometry 


42 


24 


Independent Agencies 


Osteopathic Examination and 


44 


25 


State Personnel 


Registration (Repealed) 




26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, I leating and Fire Sprinkler 


50 






Contractors 








Podiatrs' I:xaminers 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Flngjneers and Land Sur\ey 


ors 56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech and Language Pathologists and 


64 






Audiologists 








Veterinarv Medical Board 


66 





Real Estate Commission 


58 




Refrigeration Examiners 


60 




Sanitarian Examiners 


62 




Social Work 


63 




Speech and Language Pathologists and 


64 




Audiolosasts 






Veterinary Medical Board 


66 


sole: Title 21 contains the chapters of the various occupational licensing boards. 




7:6 NORTH CAROTID 


A REGISTER June 15, 1992 


623 



CUMULA TIVE INDEX 



a. Mi LA TIVE I.\DEX 

(April 1992 - March 1993) 



199: 



1993 



Pages 



Issue 



1 - 105 I - April 

106 - 173 2 - April 

174 - 331 3 - Mav 

332 - 400 4 - Mav 

401 - 490 5 - June 

4QI - 625 6 - June 



AO - Adniinistratue Order 

AG - Attorney General's Opinions 

C - Correction 

FR - I-inal Rule 

GS - Cicneral Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NI* - Notice of Petitions 

PR - Proposed Rule 

TR - 7"emporar\" Rule 



ADMIMSTRAIION 

Auxiliar>' Services, 4 PR 

A(,RICl in RE 

Cjasoline and Oil Inspection Board, 336 PR 
Structural Pest Control Committee, 332 PR 
Veterinar\' Division, 342 PR 

KNMRONMKNT. HKALTH, AND NATURAL RESOURCES 

Coastal Management. 211 PR 

Einvironmental Health. 223 PR 

Fnvu-onmental Management. 190 PR. 416 PR, 500 PR 

Go\emors Waste Management Board. 564 PR 

Health: Fpidemiolot;v. 140 PR 

Health Senices. 52 PR 

Manne lishenes. 530 PR 

NPDtS Permits Notices. 1. 107 

Radiation Protection. 136 PR 

\ital Records. 565 PR 

Wildlife Resources Commission, 2S PR. 133 PR. 40S C. 449 PR, 551 PR 

Wildlife Resources Commission Proclamation, 176 

FINAL DECISION LEFIERS 

\ oting Rights Act. 106, 174, 406, 493 



624 



7:6 NORTH CAROLINA REGISTER June 15, 1992 



CUMULA THE INDEX 



GOVERNOR/LT. COV KRNOR 

Executive Orders, 40 1 , 49 1 

HUMAN RESOURCES 

Aging, Division of, 121 PR, 346 PR 

Day Care Rules, 123 PR 

Economic Opportunity, 5 PR 

Facility Services. Ill PR, 177 PR, 496 PR 

Medical Assistance, 4 PR, 415 PR, 496 PR 

Mental Health, Developmental Disabilities and Substance Abuse Services, 111 PR, 2^7 FR, 409 PR 

Social Services Commission, 1S3 PR 

PsDEPENDEM ACENCHLS 

Housing Finance Agency, 450 PR, 576 VK 

INSURANCE 

Consumer Services Division, 125 PR 

Departmental Rules, 7 PR 

Engineering and Building Codes, 19 PR 

Fire and Rescue Services Division, 17 PR 

Hearinus Division, 124 PR 

Fife and Health Division, 22 PR, 347 PR 

Property and ("asualtx Di\ision, 20 PR 

Seniors' Health Insurance Infonnation Program, 132 PR 

JUSTICE 

rUarm Systems licensing Board, 27 PR, 189 PR 

General Statutes Commission. 353 PR 

State Bureau of Investigation, 188 PR, 499 PR 

1 ICENSING BOARDS 

Certified Public Accountant Examiners, Board of, 355 PR 

Cosmetic Art Examiners. 360 PR 

Electrolvsis I'xaminers. Board oi. 64 PR 

Nursing, Board oF 232 PR 

Professional Engineers and land Surveyors, 566 PR 

I 1ST OE Rl EES ( ODIEIEI) 

List of Rules Codified, 72. 362, 452, 584 

REVENl E 

Motor Fuels Fax Di\ision, 361 FR 

STATE PERSONNEU 

Office of State Personnel, 237 PR 

FAX REMEW BOARD 

Orders of Tax Re\ iew Board, 494 

IRANSPORFAIION 

lligliwavs, Dnision of, 228 PR 

Motor Vehicles, Division of, 68 PR, 142 PR 



7:6 NORTH CAROLINA REGISTER June 15, 1992 625 



VORTH CAROLINA ADMINISTRATIVE CODE 

'he full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
•ith replacement pages. A one year subscription to the full publication including supplements can be 
urchased for seven hundred and fifty dollars ($750.00). I ndhidual volumes may also be purchased with 
ipplement senice. Renewal subscriptions for supplements to the initial publication are available at one- 
alf the ntnv subscription price. 

PRICE LIST FOR THE SUBSCRIPTION YEAR 

New Total 

\olume Title Chapter Subject Subscription* Quantity Price 



1 - 52 


Full Code 




AU title 


s 


$750.00 


1 


1 


1 - 37 


Administration 


90.00 


-) 


2 


1 - 24 


Agricult 


ure 


75.00 


3 


~i 


25 - 52 


Agricult 


ure 


75.00 


4 


3 


1-4 


Auditor 




10.00 


5 


4 


1 -2 


VCD (includes ABC) 


45.00 


6 


4 


3- 20 


l-CD 




90.00 


7 


5 


1 - 2 


Correcti 


on 


60.00 


8 


5 


3-4 


Correction 


30.00 


9 


6 


I - 4 


Council 


of State 






7 


1 - 12 


(Cultural Resources 


60.00 


10 


8 


1 -9 


lilections 


10.00 


11 


9 


1 -4 


Governor 


45.00 


12 


10 


1 - 2 


Human 


Resources 


30.00 


13 


10 


3 A - 3K 


Human 


Resources 


90.00 


14 


10 


3L- 3R 


Human 


Resources 










(includes CON) 


45.00 


15 


10 


3S - 3\V 


Human 


Resources 


30.00 


16 


10 


4-6 


Human 


Resources 


30.00 


17 


10 


7 


Human 


Resources 


30.00 


18 


10 


8 - 9 


Human 


Resources 


30.00 


19 


10 


10 


Human 


Resources 


30.00 


20 


10 


11 - 14 


Human 


Resources 


60.00 


21 


10 


15- 17 


Human 


Resources 


45.00 


22 


10 


18 


1 luman 


Resources 


75.00 


23 


10 


19 - 30 


Human 


Resources 


90.00 


24 


10 


31 - 33 


Human 


Resources 


30.00 


25 


10 


34-41 


Human 


Resources 


60.00 


26 


10 


42 


1 luman 


Resources 


45.00 


27 


10 


43 - 5 1 


1 luman 


Resources 


90.00 


28 


11 


1-15 


Insurance 


90.00 


29 


12 


1 - 12 


Justice 




90.00 


30 


13 


1 - 6 


Labor 




30.00 


31 


13 


7 


OS HA 




45.00 


32 


13 


8- 16 


I ahor 




45.00 


l>i 


14A 


1 - 11 


(Mme Control and 
Public Safety 


45.00 


34 


15A 


1 - 2 


1 HNR (includes EMC) 


90.00 


35 


15A 


3-6 


I IINR 




45.00 


36 


15A 


7 


Coastal Management 


45.00 


37 


15A 


8- 9 


EHNR 




30.00 


38 


15A 


10 


Wildlife 




45.00 



Continued 



New Total 

\ oliinie litle C^hapttT Subject Subscription* Quantity Price 



39 15A 11 - 18 FUNR 90.00 



40 


15A 


19- 26 


EHNR 

(includes Brcathalizcr) 


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41 


16 


1 -6 


Hducation 


30.00 


42 


17 


1 - 6 


Revenue 


75.00 


43 


17 


7- 11 


Rc\enue 


60.00 


44 


18 


1 - 8 


Secretary' of State 


30.00 


45 


19A 


1 -6 


Transportation 


90.00 


46 


20 


1 -9 


Treasurer 


45.00 


47 


21 


1 - 16 


Ticensing Boards 


75.00 


48 


21 


17- 37 


Ticensing Boards 


75.00 


49 


21 


38 - 70 


[licensing Boards 






22 


1 - 2 


Administrative Procedures 


75.00 


50 


23 


1 - 2 


CoinmunitN Colleges 


10.00 


51 


24 


1 - 3 


Independent Auencies 


10.00 


52 


25 


1 


State Personnel 


60.00 


53 


26 


1 - 4 


Adininistrati\'e llearinss 


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(North Carolina Subscribers add 6% sales tax) Total 

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